Commonwealth v. Sherman

• Citation: 85 Ky. 686
• Parties: Commonwealth v. Sherman.
• Decision Date: 04 June 1887
• Court: Court of Appeals of Kentucky

85 Ky. 686

Commonwealth v. Sherman.

Court of Appeals of Kentucky.

June 4, 1887.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

P. W. HARDIN, ATTORNEY-GENERAL, AND HELM & BRUCE FOR APPELLANT.

W. P. D. BUSH FOR APPELLEE.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

The act of the Legislature, entitled "An act for the incorporation and regulation of life insurance companies," approved March 12, 1870, provides:

"Sec. 42. Every person who shall transact any business as an agent of any life insurance company without first procuring the license required in this act, or who knowingly procures payment, or any obligation for the payment of any premium for insurance by fraudulent representations, or after revocation of his license, shall be punished by fine not exceeding one thousand dollars.

"Sec. 48. Every fine, penalty or forfeiture for any neglect of duty or violation of the provisions of this act shall be sued for in the name of the State of Kentucky by the Attorney-General or prosecuting attorney of the district or county in which the company or agents so violating shall be situated, when no other provision is made by this act; and one-half of such penalty, when recovered, shall be paid into the Treasury of the Commonwealth, and one-half to the informer of such violation, other than an officer whose duty it is to enforce the law; and in case of the non-payment of such penalty, fine or forfeiture, the officer or agent of any company so offending and guilty of neglect or malfeasance shall be liable to imprisonment for a period not less than six months, in the discretion of the court having cognizance thereof."

This action was instituted by the Attorney-General June 1, 1883, in the Jefferson Court of Common Pleas, in the name of the State of Kentucky, and against the appellee, Ward B. Sherman, to recover a judgment for one thousand dollars for an alleged violation of this law.

A demurrer to the petition was presented, upon the ground, first, that the court had no jurisdiction; and second, that the plaintiff had no legal capacity to sue. It was sustained upon the last-named ground; and the appellant then amended by inserting the Commonwealth of Kentucky as the name of the plaintiff. Thereupon, the court sustained the demurrer upon the first ground, and dismissed the petition.

Authority was expressly given by the section last cited to sue in the name of the "State of Kentucky." It is said, however, that this was repealed by section 11 of the Criminal Code, which took effect January 1, 1877, and which is as follows:

"A public offense, of which the only punishment is a fine, may be prosecuted by a penal action in the name of the Commonwealth of Kentucky, or in the name of an individual or corporation, if the whole fine be given to such individual or corporation. The proceedings in penal actions are regulated by the Code of Practice in civil actions."

The Constitution provides that the style of all process shall be "The Commonwealth of Kentucky." By the amendment, however, the plaintiff was so styled and this was but a correction of what was at most but a mistake in the name of the party. It was not the substitution of a new and different person as plaintiff, but merely gave the formal statutory name of the party as prescribed by the Code. The words "State" and "Commonwealth" are used interchangeably by the Legislature and the judiciary; and admitting that it was necessary, yet it did nothing more than give truly the name of the person intended to be stated.

Process on the amendment was, therefore, unnecessary. Moreover, the court, after it was filed, acted, as must be presumed, by the consent of the appellee, upon the demurrer to the jurisdiction of the court; and it results that, although the suit was brought in the name of the State, yet as the correction related merely to the name of the party, the Commonwealth can now question the judgment below by this appeal.

It is earnestly urged, however, that the court of common pleas had no jurisdiction upon the ground that this is a penal action.

Section 48 supra merely provides that the fine may be "sued for," without naming the court in which it may be done; and the argument against the jurisdiction is based upon the third subsection of section 13 of the Criminal Code, which says:

"The circuit courts shall have general jurisdiction for the trial of all prosecutions and penal actions, unless exclusive jurisdiction be given to other courts."

Presumably, the lower court sustained the demurrer to the jurisdiction upon...