129 Ky. 720 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
This is an appeal from a judgment of the Campbell circuit court granting a writ of prohibition to prevent appellant, J. R. Morris, claiming to be police judge of the district of Clifton, from executing a judgment against appellee Cora Randall, rendered in his court, for a small fine and costs, imposed on account of a misdemeanor, for which she was tried and convicted under a warrant. The petition for the writ was filed by the appellee Cora Randall and her husband. The answer cf appellant sets forth his election and qualification as police judge of the district of Clifton, and averred that the office of which he is the incumbent was created, and is yet existing, by virtue of sections 3 and 5 of an act of the General Assembly, entitled wAn act to incorporate the district of Clifton, in Campbell county, approved February 1, 1888” (Laws 1888, pp. 256, 257, c. 158), and further averred that appellant, as such alleged police judge, had jurisdiction of the person of appellee Cora Randall, and of the offense of which she was charged, and that her trial and conviction were legally had and effected. A demurrer was sustained to the answer by the circuit court, and, the appellant failing to plead further, the writ of prohibition was granted upon the ground that the office and court of which appellant claims to be the incumbent and judge have no legal existence, the provisions of the act establishing them having been repealed by the present State Constitution. Is it true that the present Constitution -has repealed these pro
Section 109 of the Constitution declares:
‘ ‘ The judicial power of the Commonwealth, both as to matters of law and equity, shall be vested in the Senate when sitting as a court of impeachment and one Supreme Court (to be styled the Court of Appeals) and the courts established by this Constitution. ’ ’
Section 135 provides:
“No'courts save those provided for in this Constitution, shall be' established. ”
The Constitution then proceeds to provide for the establishment of the Court of Appeals, circuit courts, quarterly courts, justice’s courts, fiscal courts, and police courts. The provisions of the Constitution, with respect to the establishment of police courts are to be found in section 143, which is as follows:
“A police court may be established in each city and town of this State, with jurisdiction in cases of violation of municipal ordinances and by-laws occurring within the corporate limits of the city or town in which it is established, and such criminal jurisdiction within said limits as justices of the peace have. The said courts may be authorized to act' as examining courts, but shall have no civil jurisdiction: Provided the General Assembly may confer civil jurisdiction on police courts in cities and towns of the fourth and fifth classes, and in towns of the sixth class having a population of 250 or more, which jurisdiction shall*724 be uniform throughout the State, and not exceed that of justices of the peace.”
It is patent that the Constitution makes no provision for creating police courts, except in cities or towns, as specified in section 143. If, therefore, the district of Clifton cannot be held to be a city or town within the meaning of that section, no constitutional provision is made for the establishment of a, police court in that district, nor for the retention or continuation of one therein already established. Obviously, the words “city and town,” as used in section 143, do not embrace a district or quasi municipality,, such as the district of Clifton, unless their meaning as used in section 143 differs from that given the same words appearing in section 156 of the Constitution,, providing for the classification of cities and towns. The words “city and town” found in section 143, refer to the cities and towns classified by the Constitution. This we know, not only from the general rule of construction “that like expressions used in the same instrument are given the same interpretation, unless, the contrary is manifest from the entire context,” but also from the reference, in the latter provision of that section, to cities and towns of the fourth, fifth,, and sixth classes.
While the district of Clifton is one of the “other municipalities” mentioned'in various provisions of the Constitution, relating to taxation, it is not a town. It is of like character to the district of Highlands,, of which it was said by this court, in City of Covington v. District of Highlands, 113 Ky. 612, 24 Ky. Law Rep. 433, 68 S. W. 669: ‘ ‘ The district is not a town,, and therefore could not be properly classified as such,, as the Legislature was required by the Constitution to do.” Again in Dyer v. City of Newport, 94 S. W.
While it may be a hardship to the citizens of the district of Clifton to deprive them of a police court, this argument cannot stand as against the imperative provisions of the Constitution, which were intended to provide a uniform judicial system as to the establishment of courts, and as to their respective jurisdictions. However, it may be said that the abolition of the police court in the district of Clifton should not prove disastrous, as law and order can be maintained in the district through the magistrates and peace officers of the county of Campbell. Moreover,
We are clearly of opinion that a writ of prohibition was the proper remedy in this case. It is a preventive, rather than a corrective, remedy, its office being to prevent the usurpation or excess of jurisdiction by judicial tribunals, and to keep the courts within the limits to which the law confines them; and we do not doubt that, in the absence of any other adequate remedy, it lies to prevent unauthorized individuals; from usurping judicial power. Civ. Code Prac. section 479; Crim. Code Prac. section 25; Ex parte Roundtree, 51 Ala. 42; Walcut v. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478.
For the reasons indicated, the judgment of the lower court is affirmed.
Petition for rehearing by appellant overruled.