106 Ky. 69 | Ky. Ct. App. | 1899
delivered the opinion of the court.
There was pending before J. C. Tully, a justice of the peace of McCracken county, an action wherein the Jake
It is insisted that section 1697, Kentucky Statutes, secures to him the fund in contest as exempt from the payment of the debt due the grocer company; and that section 1701, Kentucky Statutes, which reads as follows: “The wages not to exceed fifty dollars, of all persons who work for wages, shall be exempt from execution, attachment, distress for rent, garnishment or fee-bills: Provided, That the exemption of fifty dollars shall not apply to debts contracted for food, raiment (fuel, medicine) or house rent for the family” — is unconstitutional, because it is partial legislation, etc. It is contended that under section 1697 any person other than one who works for wages would be entitled to personal property, wages, money, or growing crops in lieu of bread-stuffs and animal food to sustain his family for one year; whilst under section 1701 a man who works for wages is not given such rights.
The plaintiff sought to have issued by the circuit court of McCracken county a writ of prohibition against the justice of the peace, to compel him to abstain from the trial of the case. It is only where a court of inferior jurisdiction is proceeding to try or control a case out of its jurisdiction when the circuit court is authorized to issue a writ of prohibition.
Section 179, Civil Code of Practice reads as follows: “The writ of prohibition is an order of the circuit court to an inferior court of limited jurisdiction, prohibiting it from proceeding in a matter out of its jurisdiction.”
The appellant claims that the court has not jurisdiction, because, under the law, the debt in the hands of the garnishee is not liable to the payment' of the plaintiff’s debt; and he proceeds to argue that, therefore, the court did not have jurisdiction of the case. This proposition can not be maintained.
In the case of Arnold v. Shields, 5 Dana, 19 [30 Am. Dec., 669], the court had under consideration precisely the same question as is involved in this case. In that case it was claimed that the statute imposing the penalty which was sought to be enforced in the justice’s court was unconsti tutional. The opinion in that case is to the effect that prohibition will lie only to prevent a court from proceeding in or exercising control over a case of which it has no jurisdiction, and does not lie to prevent a tribunal
The court in this case, as in the Arnold-Shields case, had jurisdiction independent of the statute, the constitutionality of which is questioned; and the mere fact that the justice of the peace would treat as valid an act which was unconstitutional in rendering a judgment would not authorize the court to issue a writ of prohibition. When the jurisdiction of the court is fixed by a valid act, it can not be said that the court is proceeding without its jurisdiction, because, if permitted to try the case, it would render an erroneous judgment.
In delivering the opinion of the court in Arnold v. Shields, Judge Robertson said: “The authority of the circuit court to order the prohibition depends altogether on the assumed fact that the justice of the peace had no jurisdiction over the cases in which he was attempting to proceed; for it is well settled that a writ of prohibition does not lie to prevent a court from deciding erroneously, or from enforcing an erroneous judgment in a case in which it has a right to.adjudicate, but can be sustained only for preventing usurpation of judicial power by a court which has no authority to decide the case in which it assumes the right to act judicially.”
We are of the opinion that the circuit court properly decided that it had no right to interpose by a writ of prohibition. Having reached this conclusion, we have disposed of the question here for review; and should we express an opinion on the question as to whether section 1701, Kentucky Statutes, is unconstitutional, it would be advisory,
The judgment is affirmed.