205 Ky. 100 | Ky. Ct. App. | 1924
Opinion of the Court by
Sustaining the motion and granting the writ of prohibition.
The plaintiff, Natural Gas Products Company, is a foreign corporation and has constructed an extensive plant in Green county, Kentucky, with machinery necessary for manufacturing out of natural gas a commercial product known as “carbon black,” which product, as shown by the record, is extensively used in the manufae
Plaintiff introduced a number of witnesses who qualified as experts in the manufacture of “carbon black” with natural gas, some of whom had worked at the business for as long a& forty years, and they each sustained the allegations of the petition and clearly pointed out the destructive consequences of a shut down from Saturday night at 12 o’clock till the same hour Sunday night, and for even a shorter time. That evidence as transcribed by the stenographer by agreement was filed with the petition and to be considered by this court on the hearing. In addition to it plaintiff has filed the testimony of six additional expert witnesses. Illustrating the substance of the testimony of all the witnesses, we will briefly refer to that of P. F. Reardon, who, after stating that he had been engaged in the manufacturing of “carbon black” for as much as twenty-five years for various concerns located in different parts of the country, said that “the closing of a carbon black manufacturing plant for the period of 24 hours or even for a considerably less period, would materially affect the quality and color of the product produced for several days after such shut down; that the black produced for the period of from 2 to three days after such shut down would be weakened and lightened in color which would materially affect its quality for certain commercial uses; that the effect also of a shut down for the period above mentioned, would cause the black manufactured for the next 2 or 3 days thereafter to be scaley and gritty and that scaley and gritty black is totally unfit for most of the commercial uses to which it is put; that after the shut down for any such period, it would take 2 or 3 days to get the product of the plant back to the quality manufactured before such shut down, both as to color, and as to the elimination of scales and grit.” The same witness
The first question is one of jurisdiction of this court under the circumstances to issue the writ, which if possessed is given by section 110 of the Constitution, saying: “Said court (of appeals) shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions.” Among the first cases coming before this court after the adoption of our present Constitution, including of course section 110, which dealt with the power of 'this court as conferred thereby was the case of Standard Oil Co. v. Linn, 17 Ky. L. R. 832: In that case the Standard Oil Company was indicted 65 times by the grand jury' of Calloway county for a statutory offense, the penalty for the violation of which was not suf
“This court in many recent cases has had before it for consideration the question of its supervisory power as conferred by 'Section 110 of the Constitution, and- in every case where presented it has been held that the jurisdiction conferred by that section would not be exercised through the medium of the writ of prohibition unless (1) the court-sought to be prohibited was proceeding or about to proceed in a matter over which it had no jurisdiction; or (2) if it did have jurisdiction that the action about to be taken would result in great injustice to the plaintiff in the prohibition proceeding, and great or irreparable injury to him, and that he had no other remedy by appeal, or otherwise. Board of Prison Commissioners v. Crumbaugh, 161 Ky. 540; Ohio River Contract Co. v. Gordon, 170 Ky. 412; Greene, Auditor v. Wolfe, 175 Ky. 58; Cohen v. Webb, idem 1; Rallihan v. Gordon, 176 Ky. 471, and Board of Commissioners v. Crumbaugh, idem 720.”
A case in which the facts were analogous to those involved here is that of Illinois Central R. R. Co. v. Rice, 154 Ky. 198, wherein the court in its opinion said: “It seems to us an extraordinary situation is here presented requiring the interposition of this court,” and a temporary writ of prohibition was granted restraining the county judge of Muhlenburg county from proceeding to try cases within his jurisdiction and from which there was no appeal until a hearing upon its merits could be had in an injunction proceeding then pending in the circuit court. We are, therefore, constrained to the conclusion that under the averments of the petition we have jurisdiction to grant the writ if the facts authorize it.
Obviously defendant is not guilty of violating the statute, if the work, for the doing of which on Sunday it
In construing and applying the word “necessity” in such statutes, it is not meant “a physical and absolute necessity” and, “the question must be determined according to the particular circumstances of each case, having regard also to the changing conditions of civilzation.” (25 R. C. L. 1421.) On the following page a number of instances are given of such a necessity as will excuse one from the operation of the statute, included in which the operation of an ice factory, and the hauling to market of fruit and produce to avoid its spoiling. A familiar illustration in this state would be the firing of tobacco so as to properly'cure and color it for market, as well as to prevent it from damaging in the barn, since we are convinced that although such labor is a part of the regular work of a farmer, and other similar work rendered absolutely necessary for the protection and preservation of his produce, yet it would no doubt be regarded as a work of necessity within the contemplation of the statute. But, the question has been before us in a number of cases, one of which is McAfee v. Commonwealth, 173 Ky. 83; and in defining the requisite necessity of the work in order to relieve the one doing it from the penalties of the statute, the opinion in that case said:
“It is also well settled by the current authority that the necessity that will excuse engaging in work or business on the Sabbath day need not be a physical necessity or an imperative or overpowering necessity. It need be only a reasonable necessity and one that is created by some real or unexpected emergency or uncommon or extraordinary condition. The fact that the failure to do something may cause interruption or delay in the ordinary course of business, or some discomfort or inconvenience to the individual affected or thé public, will not make the do*107 ing of the thing a work of necessity. It must be something that not to do would work severe hardship or loss or unusual discomfort or inconvenience either to the individual who does the thing complained of or to the person or persons for whom he does it. Commonwealth v. White, 190 Mass. 578, 5 L. R. A. (N. S.) 320; Quarles v. State, 55 Ark. 10, 14 L. R. A. 192; Western Union Telegraph Co. v. Yopst, 118 Ind. 248, 3 L. R. A. 324; State v. James, 81 S. C. 197, 16 Ann. Cases 277; City of Gulfport v. Stratakos, 90 Miss. 489, 13 Ann. Cases 855; Burns v. Moore, 76 Ala. 339, 52 Am. Rep. 332; Pate v. Wright, 30 Ind. 476, 95 Am. Dec. 705.
“It is also true that conditions and emergencies are continually arising that make it necessary to engage in work or business on Sunday either for the benefit of the person actually engaged in the work or business or for the benefit of some other person affected by the condition or emergency. ’ ’
And that excerpt seems to be a fair expression of the law everywhere upon the subject. Other cases since then are Capital Theater Co. v. Commonwealth, 178 Ky. 780, and Page v. O’Sullivan, 159 Ky. 703, and others referred to in those opinions.
Measuring the necessity relied on by plaintiff in this case by that definition, we can arrive at no other conclusion than that the work for which plaintiff was indicted and convicted and for which defendant, according'to the allegations of the petition, intends to continue to prosecute and convict it, was and is such a work of necessity as relieves it from the penalties of the statute. Clearly the work which plaintiff did and proposes to do on Sunday and for which it was indicted was, according to the averments of the petition and the undisputed testimony, “something that not to do (it) would work severe hardship or loss ... to the individual who does the thing complained of orto the person or persons for whom he does it,” even to the practical destruction of the business.
It, therefore, follows that the motion should be and it is sustained and a writ ordering and directing defendant to not proceed with the trial of the other indictments or to cause others to be returned will issue.