City of Lexington v. Cox
| Decision Date | 26 May 1972 |
| Citation | 481 S.W.2d 645 |
| Parties | , 2 Envtl. L. Rep. 20,442 CITY OF LEXINGTON, Kentucky, a Municipal Corporation, Petitioner, v. Henry Clay COX, Judge of the Jessamine Circuit Court, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
George F. Rabe, Corp. Counsel, Lexington, for petitioner.
VANCE, Commissioner.
The grand jury of Jessamine County returned an indictment against the city of Lexington, Kentucky, its Mayor and members of the City Commission charging them in separate counts with maintaining a common-law nuisance in Jessamine County and with the pollution of Hickman Creek in Jessamine County in violation of KRS 150.460(1). The indictment was dismissed as to the mayor and city commissioners. The city of Lexington now seeks an order of prohibition from this court to enjoin the respondent from further proceedings upon the indictment.
The original jurisdiction granted to this court by Section 110 of the Constitution to issue such writs as necessary for grneral control of inferior jurisdictions is not exercised lightly and orders of prohibition or mandamus will not ordinarily be granted unless it appears (1) that the inferior court is threatening to proceed or is proceeding in a matter in which it has no jurisdiction and there is no remedy through an application to an intermediate court, or (2) that it is proceeding erroneously within its jurisdiction and that irreparable injury will result to the petitioner for which he has no adequate remedy at law. Pace v. Wolfinbarger, Ky., 420 S.W.2d 561 (1967).
The first inquiry therefore is whether the Jessamine Circuit Court has jurisdiction of the offense of polluting a stream in Fayette County, Kentucky, when the stream carries the pollution into Jessamine County and causes a public nuisance there.
In Indian Refining Co. v. Commonwealth, Ky., 117 S.W. 274 (1909), this court upheld an indictment returned in Franklin County which charged the defendant with maintaining a common nuisance in Franklin County by emptying pollutants into Elkhorn Creek in Scott County, Kentucky, which thence flowed into Franklin County.
In Commonwealth v Louisville & Nashville Railroad Co 175 Ky., 267, 194 S.W. 345 (1917), the specific question at issue here was decided and this court held that the defendant railroad could be prosecuted in the Trimble Circuit Court for polluting a stream in Henry County which then flowed into Trimble County carrying the pollution with it. We held that the prosecution for maintaining a public nuisance may be brought in the county in which the nuisance was committed or the one in which the inhabitants are aggrieved.
That the county where the results of the pollution of a stream are manifested has jurisdiction despite the fact that the acts of pollution occur in another county is supported by the majority of courts which have considered the question. State v. International Paper Co., 201 La. 870, 10 So.2d 685 (1943); State v. Wabash Paper Co., 21 Ind.App. 167, 48 N.E. 653 (1897); State v. Glucose Sugar...
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Beaven v. McAnulty
...had an adequate remedy on appeal. The Skidmore Court affirmed the Court of Appeals on the same ground, citing City of Lexington v. Cox, Ky., 481 S.W.2d 645 (1972), which holds that mandamus is ordinarily not available to the question of venue because the remedy by appeal is adequate if any ......
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...had an adequate remedy on appeal. The Skidmore Court affirmed the Court of Appeals on the same ground, citing City of Lexington v. Cox, Ky., 481 S.W.2d 645 (1972), which holds that mandamus is ordinarily not available to the question of venue because the remedy by appeal is adequate if any ......
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Burchell v. Burchell, s. 83-CA-2760-M
...jurisdiction, or is proceeding erroneously within its jurisdiction and the petitioner has no adequate remedy at law. See Lexington v. Cox, Ky., 481 S.W.2d 645 (1972). As the appellant's notice of appeal was untimely, jurisdiction, as discussed, was never conferred upon this court and remain......