Gordon v. Tracy

• Decision Date: 10 March 1922
• Citation: 238 S.W. 395,194 Ky. 166
• Parties: GORDON v. TRACY, CIRCUIT JUDGE.
• Court: Kentucky Court of Appeals

238 S.W. 395

194 Ky. 166

GORDON v. TRACY, CIRCUIT JUDGE.

Court of Appeals of Kentucky.

March 10, 1922

Petition by Robert A. Gordon for a writ of prohibition against Frank M. Tracy, Judge of the Circuit Court of the Sixteenth Judicial District. Writ denied.

Stephen L. Blakey, of Covington, for petitioner.

Thos B. McGregor, of Frankfort, for respondent.

SETTLE J.

The petitioner, Robert A. Gordon, by petition filed in this court, prays of it a writ of prohibition against the respondent, Frank M. Tracy, judge of the circuit court of the Sixteenth judicial district of Kentucky, to prevent him sitting as a court, from compelling the petitioner to answer a certain question or questions propounded to him by the grand jury of Kenton county as ordered by him, and also, from enforcing such order, if disobeyed by petitioner, by proceeding, as threatened, to punish him for contempt. The respondent filed a general demurrer and response to the petition, and the cause was thereupon submitted upon the petition, demurrer to same, and response.

The facts that must be considered in passing on the question presented for decision in this case are admitted by the pleadings to be as follows: The petitioner, Robert A. Gordon resides in the city of Covington, where he owns and conducts a drug store, in which, in addition to drugs and soft drinks, he keeps for sale newspapers, magazines, and other publications, including a daily publication styled the "Daily Racing Form," which is issued from the city of Chicago, Ill., and for the sale of which he is the sole agent in the city of Covington. His sales of this publication amount to about 150 copies per day, at least 40 of which are distributed to regular subscribers in Kenton county, and the remainder over the counter of his store to other persons living in or contiguous to Covington.

The Daily Racing Form publishes and furnishes its readers the racing news from all race tracks in the United States, Canada, Mexico, and Cuba, advertises all dates of races, and the entries of horses for races run and to be run, the wagers offered or placed on each, gives the "tips" of horsemen as to the probable winners in horse races to be run, also the pedigrees, past records, and performances of horses entered as racers at the tracks where meetings are being held, the names of jockeys by whom they are to be mounted, and much other information, both general and specific, respecting horse racing that would prove useful to persons wishing to place wagers on such sport, even without attending the meetings at which the racing is conducted.

It further appears from the pleadings that the petitioner was duly served with a subp na to appear as a witness before the grand jury of Kenton county, which, then being in session, had under investigation, among other offenses against the criminal and penal laws of the state, violations of the laws thereof against gambling, especially gambling upon the racing of horses, particularly denounced by chapter 8, Acts General Assembly 1920. Upon the petitioner's appearing before the grand jury in obedience to the subp na, and after being duly sworn as a witness by the foreman of the grand jury, he was asked by the commonwealth's attorney, then present in the grand jury room, to state the names of the persons to whom he was accustomed to sell or had sold the Daily Racing Form, which question he did not answer, and told the grand jury he would not answer, unless advised by his attorney to do so. Petitioner was immediately given an opportunity to consult his attorney, after doing which he returned to the room of the grand jury and flatly refused to answer the question previously propounded to him by the commonwealth attorney in their presence. Thereupon, in conformity to section 108, Cr. Code, petitioner was taken by the grand jury before the respondent, Frank M. Tracy, judge of the Kenton circuit court, criminal division, whose court was then in session, and he presiding as the judge thereof. The foreman of the grand jury then stated to the respondent as judge of the court the question that had been asked petitioner, his refusal to answer same, and the reason given by him for such refusal. Whereupon respondent, as judge of the court, informed the petitioner that he must answer the question propounded, and that his refusal to do so, if persisted in, would result in his being proceeded against by respondent as for a contempt of court. Persisting in his refusal to answer the question, petitioner at once filed in this court his petition for the writ of prohibition.

It is insisted for the petitioner that the question asked him before the grand jury was one the court was without authority to compel him to answer: (1) Because the act, violations of which the grand jury were seeking of him evidence by the question propounded, is unconstitutional; (2) that to have answered it by furnishing the names of persons who purchased of him the Daily Racing Form would probably result in the loss to him of their patronage, and thereby injure his business; (3) the information demanded thereby would have been incompetent as evidence for any purpose.

As to the first of these contentions, it is sufficient to say that as the petitioner was in no way affected by the act of 1920, or the investigation being conducted by the grand jury under it, his objection to its constitutionality, if it had been made before the respondent, could not have been considered by the latter, nor can it now be considered by us; for it has repeatedly been held by this court that one who is unaffected by the...