165 Ky. 185 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
The appellant and the appellee are justices of the peace for Jefferson county, Kentucky. The district in which Schulman was elected is composed of the fourth, fifth, sixth and seventh wards of the city of Louisville, and is known as the sixth magisterial district of Jefferson county, Kentucky, and in which the appellee has an office for the transaction of his business as a justice of the peace, and in which he holds his court. The appellant, C. C. Wheeler, is, also, a justice of the peace, and was elected in the second magisterial district of the county, which is situated in Jefferson county, but without the city of Louisville. The appellant has an office at Buechel, which is within the second magisterial district, and where he holds court, and transacts other business connected with the office of justice of the peace. The appellant, in addition to tjae office which he has at Buechel, has, also, established an office at 233 South Fifth street, in the city of Louisville, and at a point which is within the sixth magisterial district’ of the county, where he tries causes and maintains a court, and transacts the official duties of a justice of the peace.
The appellee, individually and in his capacity as justice of the peace for Jefferson county, filed a petition' in equity in the Jefferson circuit court, in which he alleged that the office held by him was one of emolument and profit, and that the income from it depended upon the number of matters brought to him by the general public, and that he was dependent on the fees and costs resulting from the business of his court and of his office as justice of the peace to provide the expenses of his court and any gain to him as the incumbent of the office;
The appellant, by answer, denied that he was securing business which would otherwise go to the- office of the appellee, if the appellant held his court in the territorial limits of his district, or that the appellee was deprived of a substantial amount of business on account of the court of appellant held within the sixth magisterial district, or that any injury would accrue to the public by reason of his so doing, or that he was without jurisdiction or authority or right in establishing and maintaining an office and court within the sixth magisterial district, or that his so doing constituted a breach of his official duties or obligations, or an infringement of the rights and prerogatives of the appellee, or that a judgment rendered by him -at a place without the territorial limits of his district was invalid, and by another paragraph alleged that suits tried before him as a justice of the peace, in the court held by him within the dis
The appellant excepted to this judgment and prayed an appeal to this court, which was granted.
This unseemly scramble for the perquisites of a judicial office presents some novel questions. The office of justice of the peace is a very ancient one and the history of its creation is lost amid our judicial antiquities, and the people, through their legislators and constitution makers, still maintain its existence, as one of the necessities of our ■ system of government, with a tenacity of opinion, doubtless founded upon many reasons that are now lost. Under our constitution and statutes, however, the jurisdiction, powers, duties, and emoluments of the office of justice of the peace are controlled and restricted by the terms and provisions of the constitution and the statutory enactments upon the subject. The office is one, the emoluments of which, depend almost entirely upon the fees provided for the exercise of its duties. Without the fees attached- to the performance of its duties, the one holding the office could not maintain .a place for the holding of his court nor afford to give his time and attention, alone, to the wearing of its honors.
The chief question presented for determination upon the record is: Where must a justice of the peace maintain his court? Must he maintain his court in the district for which he is serving, oj; may he hold a court wherever he may happen to be within the limits of the county ? Or can he move the place for holding the court of which he is judge into a district other than the one for which he was elected and serving, and there maintain it and administer justice, alongside of the court, which is being maintained therein, by the justice who was elected and serving for that district? Manifestly, if one justice of the peace may maintain a court, within! a district for which he was not elected, every other justice in the county could do, likewise, and the anomalous situation would be presented, of eight justices’ courts, in full operation in one district of the county, while the other districts of the county would substantially be left barren of whatever benefits such courts may bestow.
The makers of the constitution provided, among other courts, the court of a justice of the peace, by Section 142, of that instrument, which is as follows:
“Bach county now existing, or which may hereafter be created in this State, shall be laid off into districts in such manner as the General Assembly may direct; but no county shall have less than three or more than eight districts, in each of which districts one justice of the peace shall be elected as provided in Section Ninety-nine. * * * The jurisdiction of the justices of - the peace shall be co-extensive with the county, and shall be equal and uniform throughout the State. Justices of the peace shall be conservators of the peace. * * * And shall vacate their office by removal from the districts, respectively, in which they may have been elected. ’ ’
Other sections of the Constitution provide that there shall be a circuit court and a county court established in each county, but, as in case of a justice of the peace,, it is silent as to where such courts shall be held. It is. manifest, however, that ■ the Constitution makers, by Section 142, did not intend merely to create,a judicial individual and to denominate him a justice of the peace,, but the purpose of the section was to create and establish a court to be holden and presided over by an officer to be denominated a justice of the peace. The article created a court, and the justice of the peace was made the judge of it. While the article provides that the jurisdiction of the justice of the peace shall be co-extensive with the county, it vested him with no jurisdiction in civil matters at all. It expressly provided that he should be a conservator of the peace. The laws impose many duties upon a justice of the peace. Some are ministerial duties and others judicial. In the execution of his office, many of his duties are clerical. It is axiomatic, however, that he cannot perform judicial functions, except in the court presided over by him. The purpose of the Constitution to create and establish one' justice’s court, in each magisterial district, is as evident, as its purpose to permit of the election of only one justice of the peace in each of such districts. The court of the justice of the peace for a magisterial district could no more be lawfully held without the territorial limits, of such district, than the county, or quarterly, or circuit courts, for one county, could be lawfully held in another county. The only court of which a justice of the peace is judge, is the one established in the district for which he was elected and serves. The justice’s, court for a magisterial district is an institution established for that district, just as the county and circuit court of a county is an institution established for that particular county. The conclusion then necessarily follows, that the justice’s court for a magisterial district, must be held within the limits of the district, and if the justice of the peace for that district would hold his court, he must do so within the district, because he is not the judge of any other court. He cannot carry the justice’s court of his district around with him, like something-
A reference to the statutes governing the procedure and exercise of the jurisdiction of a justice of the peace, showing the construction placed upon Section 142 of the Constitution by the legislative department of the government, bears out the construction herein placed upon it. Sections 1085, 1086, 1087, 1088, 1089, and 1090, of Kentucky Statutes (Carroll 1915), and Title XVI., of the Civil Code, govern the regular procedure in justices’ courts, as pertains to civil actions, except in certain instances of special proceedings, which are 'fully controlled and regulated by the statutes providing for them, as proceedings in forcible entry and detainer, etc. The only authority for a justice of the peace to hold a court for the trial of civil causes, . except in certain special proceedings, is Section 1085, supra, which provides that a justice of the peace shall hold a court for the trial of civil causes in his district, once in each three months, at a time designated by the county court. There is no provision authorizing him to hold a court .for the trial of civil causes, at any other place, than in his district, except as provided by Section 1090, supra, and
Section 710, Civil Code, with reference to procedure in civil cases, in a justice’s court, provides that if the defendant reside in the county in which the summons is issued, it shall be returned for trial in the district of his residence, unless he otherwise consent in writing, signed by him, and endorsed on the. summons; or, unless the justice in such district be interested or refuse to act, in which case it shall be returned in an adjoining district. This statute and 721, supra, clearly imply the existence of a justice’s court peculiar to the district in which the judge of such court resides, and seems to be a salutary regulation of the exercise of the jurisdiction of the justice. He may issue the original process against the defendant, who resides in any portion of the county, but it becomes the duty of the officer executing the process
The Superior Court, in the case of Venhoff & Co. v. Morgan, &c., 11 R., 276, expressly held, that when,a justice rendered a judgment outside of his district, where he assumed to hold his court regularly, it was void. In that case, it was, also, held that the legislature had the undoubted power to fix the time and place for the holding of a justice’s court. The court further said: “He becomes a judge when he is appointed or elected, but he becomes a court only when, at the time and place designated by law, he performs judicial duties.” The legislature has fixed the place of a .justice’s court for the trial of civil causes, at a place within his district. The legislature has authorized the county court to fix the time for the holding of a justice’s court for the trial of civil causes, and it cannot be held at ány other time, lawfully, except in the state of case provided for in Section 721, Civil Code, supra, and Section 1107, Ky. Statutes. When a justice acts in the states of case provided for by Section 1090, supra, and 1108, he is not then holding the court provided for his own district, but he is holding the court for the absent or disqualified justice, and for the district for which the absent or disqualified, justice is serving, or in case of a vacancy in the office
A justice of the peace cannot hold a court for the trial of causes, by consent of the litigants, in a district other than the one for which he was elected and serves, because the law provides for only one such court in a district, and the result of permitting another to be set up and maintained by consent of parties, would be maintaining two' such courts in the district, where the law provides for only one. The proceedings in a court held by consent of parties would amount to an arbitration, and its judgments would be controlled by the laws governing such.
In Johnson v. Higgins, 3 Met., 575, this court said: ‘ ‘ Courts are to administer justice by course of’ law, and they have no power to render judgments, except at terms prescribed by law for the transaction of such business, or the trial of such cases, or at which such business is allowed by law to bé done. Such procedure would be emphatically, coram non judice, and the judgment void, because forbidden by law.”
When a case is pending in a justice’s court for a district, and the justice whose duty it is to hold such court is absent or disqualified, or for any reason cannot or will not act, or in case of a vacancy in the office in that district, the parties to such suit may agree upon another justice to sit in the case, in the court of that district, but he may not set up his own court in such district ; or a judge may be provided for such court, as provided by Sections 1090 and 1108, Ky. Statutes.
The justice of the peace may administer oaths, at any place in the county, and as a conservator of the peace, may cause the arrest of anyone violating the law, in his presence, at any place in the county, and may issue warrants and summons, at any place in the county, against any persons who are charged with the violation of the criminal or penal laws, at any place in the county, and may try such offenders, as may be lawfully brought before him for trial, either upon process issued by him or upon process issued by any other justice of the peace,
The justice of the peace must keep the records of his office, and the records of his court, at a place within his •district, where the people, for whom the court was specially established, may have the benefit of the use and .existence of such records, and that the place of their location may be known.
The judgment appealed from not being in conformity with this opinion, it is, therefore, reversed, and the .cause is remanded, with directions to render and enter a judgment in conformity to this opinion.