Arnold v. Shields

• Decision Date: 05 April 1837
• Parties: Arnold and Parish v. Shields et al.
• Court: Kentucky Court of Appeals

35 Ky. 18

Arnold and Parish v. Shields et al.

Court of Appeals of Kentucky.

April 5, 1837

FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.

Mr Pirtle and Mr. Guthrie for plaintiffs.

Mr Owsley for defendants.

OPINION

ROBERTSON CHIEF JUSTICE.

This appeal is prosecuted for reversing a final judgment of prohibition, rendered on demurrer to a declaration filed by the appellees, as lessees of a ferry over the Ohio river from Albany in Indiana, to Portland in Kentucky, against the appellants--one of them as a justice of the peace, the other as the grantee of a ferry from the former place, across the same river; and founded on an affidavit suggesting that one of the appellants, as a magistrate of Jefferson county including Portland, had at the instance of his co-appellant issued sundry warrants against the appellees jointly, for enforcing, in each case the penalty of fifty dollars, denounced by a statute of this State, in 1836, against the owners and lessees of ferries from the Indiana shore, for passing in their own boats, or for transporting in them, any person or thing, from any point on the opposite shore embraced in Jefferson county; and also, suggesting, that judgment for the penalty of fifty dollars had been rendered in one of those cases, and that all the other cases were still pending; and therefore, praying for a writ of prohibition to prevent further proceedings on the judgment, as well as on the warrants.

The Circuit Court having rendered judgment on the declaration, for prohibition, according to the petition, the only questions presented for revision are those arising on the demurrer; and they may all be embraced in the following propositions:

First. Had the Circuit Court jurisdiction?

Second. Was the declaration good?

First. The first inquiry may be subdivided into four subordinate questions:

(1.) Is an action in prohibition maintainable here in any case?

(2.) Is a Circuit Court an appropriate forum for the maintenance of such a proceeding for prohibiting a justice of the peace from acting in a case coram non judice?

(3.) If a Circuit Court may take cognizance of any such proceeding--has it power to order a prohibition in a case which, though not within the jurisdiction of the inferior court in which it may be pending, would not have been within its own cognizance, either or ginal or rev sory?

(4.) Had the magistrate jurisdiction over the case respecting which the prohibition in this case was ordered?

Prohibition is an existing legal remedy in this state.

First. Prohibition, being a useful and usual common-law remedy, should be deemed applicable and proper here, unless abolished by statute or desuetude, or deemed inconsistent with our peculiar institutions. It has not been abolished by any positive enactments; nor can we perceive any reason for considering it either obsolete or incongruous. Wherefore, we do not feel authorized to decide otherwise than that it is still here an existing legal remedy in an appropriate case.

As, by the com. laws (still in force here), all superior courts are entitled to a general superintendence over their subordinate tribunals--the circuit courts have authority to issue writs and render judge's of prohibition, to restrain those tribunals and magistrates from whose judge's and orders appeals lie to the circuit courts, from exercising any arrogated jurisdiction.

The court of appeals if it would proceed by prohibition in any case-- would do so, only where the prohibition was to operate on a court whose proceedings it might revise in one of the ordinary modes; not where it was to restrain a J. P.

Prohibition lies to prevent a court from proceeding in, or exercising control over a case of which it has no jurisdiction; and it is immaterial whether the case is one which belongs to a higher tribunal, or a matter of which no court can take cognizance.

Second. According to the common law, superior courts are entitled to a general superintendence over all subordinate courts, for the purpose of keeping them in their prescribed sphere, and of preventing usurpation; and therefore, in England, the King's Bench and the Common Pleas have a general, and the chancellor a qualified, authority to restrain, by prohibition, all other courts inferior to them from exercising any arrogated jurisdiction. In this Commonwealth, the Circuit Courts bear towards the County Courts and justices of the peace a relation of superiority resembling, in all essential particulars that of the King's Bench over the inferior tribunals of England; and are the only courts of original jurisdiction in which a common law suit in prohibition could be maintained. If a proceeding for prohibition may be instituted in the Court of Appeals, (a point we shall not now discuss,) it could be done only in a case in which, in the exercise of its appellate jurisdiction, it has the power of controlling the inferior courts by a direct revision of its judicial acts. Having no such power over justices of the peace, this Court, if it can grant a prohibition in any case, could not have ordered that which was directed by the Circuit Court. And consequently it seems to us, that, in such a case as this, the Circuit Court of Jefferson had jurisdiction if any court had.

Third. Although it is sometimes said, that the object of a prohibition is to prevent the usurpation, by an inferior, of jurisdiction which belongs to a superior court, nevertheless, it seems, not only to accord with reason and fitness, but to be well settled by authority, that an inferior tribunal may be prohibited from acting in a case in which no court would be entitled to cognizance. The fact that a court is attempting to exercise control over a case in which it has no right to act, is a sufficient ground for a prohibition, whether any other court would have jurisdiction or not. Thus in England, it has been decided, that a prohibition would lie to a suit there before the Pope's collector pro lesione fidei, because, although no other tribunal had jurisdiction, still the Pope's legate had no authority in England. Bro. Jurisdiction, 20; Comyn's Dig. title Prohib. A. 2 & F. 1, 11. So likewise, if an inferior court attempt to act in a case in which no court has authority. 4 Mod. 151; Salk. 425. And, in the absence of authority, it would seem to be at least as proper to interefere by prohibition, in such a case of usurpation of power possessed by no court, as in a case of encroachment by an inferior on the jurisdiction delegated to a superior tribunal.

Fourth. 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.

It does not lie to prevent any tribunal from deciding erroneously, or from enforcing an erroneous judg't; but only where it assumes jurisdiction of a matter which it has no right to try.

The counsel for the defendants in error, conceding the correctness of the foregoing proposition, and admitting also (as we understood him) that, if the legislative enactment which the justice was attempting to enforce, and which declares that justices of the peace shall have jurisdiction to enforce the penalties denounced by it, be constitutional, his jurisdiction is unquestionable, and therefore the prohibition was extra-judicial--yet, insists, that the statute is unconstitutional, and that, therefore, as it could confer no authority, there was no jurisdiction in any court to render a judgment for the penalty prescribed for a violation of it.

Constitutional queries suggested, which might arise upon the act of 1836, prohibiting owners and lessees of ferries established on the Indiana side of the Ohio, from ferrying any person or thing from Jefferson county in this State unless by agreement with the owner of a ferry on this side--but as to which no opinion is required or intimated; inasmuch, as the penalty ($50) is within the general jurisdiction of a justice of the peace, who must decide all the questions in any case before him--including any that may arise upon the constitutionality of a law that he is called upon to administer; and the constitutionality of the act in question, must, therefore, be decided by a justice, in the first instance. For--

A contract, to pay a statutory penalty, is implied by law, and may be enforced--when no different exclusive mode is provided-- by any court or magistrate that has jurisdiction of other debts of like amount, between the same parties. But--

Whether any provision in the act of 1836, should be deemed repugnant to that clause in the Federal constitution, which delegates to the Congress of the United States “power to regulate commerce”--including, as has been decided, trade and navigation--“between the States”--might be an interesting question; depending, for its proper answer (1.) on whether notwithstanding the comprehensiveness of that grant of power to the National Legislature, a State may, nevertheless, exercise a concurrent authority not conflicting with any regulation by Congress, as seems to have been, at least intimated by the Supreme Court of the United States; or, if this be not so, (2.) on whether the local...