Reeves, Com'R of Revenue, v. Bell, County Judge

• Decision Date: 31 January 1941
• Citation: 285 Ky. 300
• Parties: Reeves, Com'r of Revenue, et al. v. Bell, County Judge.
• Court: United States State Supreme Court — District of Kentucky

Page 300

285 Ky. 300

Reeves, Com'r of Revenue, et al. v. Bell, County Judge.

Court of Appeals of Kentucky. In Court of Appeals.

January 31, 1941.

1. Intoxicating Liquors. — Under statute authorizing field representatives of department of revenue, on probable cause to seize without warrant any contraband intoxicating liquor and "to hold the same subject to the order of the court," the Legislature intended that contraband whisky seized by field representatives should be held by them until its ownership should be determined by court, and county court's action in requiring field representatives to deliver whisky seized to sheriff, was erroneous, the quoted phrase meaning that possession shall remain in field representatives until court enters an order vesting title in Alcoholic Beverage Control Board or restoring property to its lawful owner (Ky. Stats. Supp. 1940, sec. 2554b-151).

2. Prohibition. — To authorize Court of Appeals to issue writ of prohibition, plaintiffs, in addition to establishing that county court acted erroneously, must establish that irreparable and remediless injury will result (Constitution, sec. 110).

3. Prohibition. — Where a court inferior to the circuit court is proceeding without its jurisdiction, the proper forum to issue a writ of prohibition is the circuit court.

4. Courts. — Where a court inferior to the circuit court is proceeding within its jurisdiction, but erroneously, and great and irreparable injury will follow from the threatened erroneous act and the party who would be injured by such act is without adequate remedy by appeal or otherwise, the Court of Appeals has original jurisdiction to issue writ of prohibition (Constitution, sec. 110).

5. Intoxicating Liquors. — If unstamped whisky seized by field representatives of department of revenue as contraband is taken from their possession by an order of county court, they will not be liable for its value under their official bonds, even though the order, which is within court's jurisdiction, is erroneous (Ky. Stats. Supp. 1940, secs. 2554b-151, 4281c-4; Ky. Stats., 1936, secs. 4281c-10, 4281c-13, 4281c-18).

6. Courts. — The field representatives of department of revenue who seized unstamped whisky as contraband were not entitled to writ of prohibition against county judge's requiring them to deliver the whisky to county sheriff in an original proceeding in Court of Appeals, since they would not suffer "great and irreparable injury" required to give Court of Appeals original jurisdiction, as only loss they would suffer would be loss of possession of whisky (Ky. Stats. Supp. 1940, secs. 2554b-151, 4281c-4; Ky. Stats. 1936, secs. 4281c-10, 4281c-13, 4281c-18; Constitution, sec. 110).

7. Courts. — Financial loss, alone, does not necessarily constitute such "great and irreparable injury" as to authorize Court of Appeals to entertain original jurisdiction of a proceeding for writ of prohibition (Constitution, sec. 110).

8. Courts. — Where commonwealth's motion to require sheriff to execute bond for $1,000 on transfer to sheriff of unstamped contraband whisky seized by field representatives of revenue department was sustained, Court of Appeals must presume that there will be compliance with that order (Ky. Stats. Supp. 1940, secs. 2554b-151, 4281c-4; Ky. Stats. 1936, secs. 4281c-10, 4281c-13, 4281c-18).

Hubert Meredith, Attorney General, and Earl S. Wilson, Assistant Attorney General, for plaintiffs.

Hannah, VanSant & McKenzie for defendant.

OPINION BY CHIEF JUSTICE REES.

Overruling and denying writ of prohibition.

The plaintiffs, H. Clyde Reeves, Commissioner of Revenue, B.S. Wigginton, Edgar Kitchen, and R.E. Bateman, field representatives of the Department of Revenue, by this original proceeding in this court, seek to prohibit the defendant, George Bell, county judge of Boyd county, from requiring the plaintiffs Wigginton, Kitchen, and Bateman to deliver certain contraband whisky now in their possession to the sheriff of Boyd county. The facts alleged in plaintiffs' petition for a writ of prohibition, briefly stated, are these:

On or about November 2, 1940, plaintiffs Wigginton, Kitchen, and Bateman were informed that one Elbert Rigsby had stored certain unstamped contraband whisky in the residence of John Johnson, Sr., in Boyd county. An affidavit for a search warrant was made, and a search warrant was issued by a justice of the peace in Boyd county. The plaintiffs searched the premises of John Johnson, Sr., and there found and seized 49 cases of whisky which failed to bear the tax stamps required by Section 4281c-4, Kentucky Statutes, 1940 Supp., and Subsections 10, 13, and 18 of Section 4281c, Carroll's Kentucky Statutes, 1936 edition. Four warrants for the arrest of Rigsby for violating the foregoing sections and Section 2554b-150, Kentucky Statutes, 1940 Supp., were issued, and Rigsby was arrested. Rigsby was tried in the Boyd county court November 27, 1940, and the proceedings are thus stated in the judgment of the court:

"Thereupon the defendant filed his written motion to quash the affidavit and search warrant issued thereon, and to suppress the evidence, which motion was ordered filed in this action, and also in Warrant No. 2 charging a violation of Section 2554b-150, Carroll's Kentucky Statutes.

"Thereupon counsel for the Commonwealth stated to the Court that the Commonwealth was not relying upon any evidence obtained by reason of a search warrant. Thereupon the Commonwealth introduced Johnny Johnson, who testified in its behalf.

"At the conclusion of the witness' testimony, the defendant filed his written motion to quash the warrant in this cause, and also Warrant No. 2 above referred to, because said warrants were issued in violation of Section 10 of the Constitution. The Court then heard argument by counsel for defendant on the motion to quash the warrant of arrest. At the conclusion of said argument the Commonwealth asked for a recess. Counsel for the Commonwealth of Kentucky later returned into Court, and moved the Court to dismiss Warrants Nos. 1 and 2, and Warrants Nos. 3 and 4, which charged a violation of Section 4281c-13, Carroll's Kentucky Statutes, without prejudice. The Court sustained the Commonwealth's motion to dismiss warrants Nos. 2, 3, and 4 above referred to, without prejudice, to which ruling of the Court the defendant objected and excepted. The Court overruled the Commonwealth's motion to dismiss Warrant No 1 above referred to, to which ruling of the Court the Commonwealth excepted. The Court thereupon sustained the defendant's motion to quash Warrant No. 1 charging him with a violation of Section 2554b-150, Carroll's Kentucky Statutes, because there was no affidavit, oath, or affirmation to support same, to which ruling of the Court the Commonwealth excepted.

"It is therefore ordered and adjudged that the defendant be discharged from custody in each of the aforementioned warrants."

After entering this judgment the county judge entered an order adjudging that the whisky in the possession of the field representatives of the Department of Revenue, Wigginton, Kitchen, and Bateman, had been illegally seized, and ordering them to deliver it to the sheriff of Boyd county and that it be held by the sheriff subject to the further orders of the court. The Commonwealth excepted to the order and moved the court that the sheriff be put under bond in the amount of $1,000 to make proper accounting of the whisky, and that motion was sustained by the court. It is alleged in the petition that it was erroneous on the part of the county judge to order the plaintiffs Wigginton, Kitchen, and Bateman, who are duly qualified and bonded officers of the Commonwealth of Kentucky, to deliver the whisky which was legally in their custody to the sheriff of Boyd county, and if they are required to comply with this erroneous order and the sheriff fails to make proper accounting of the whisky they will be liable on their bonds and will be irreparably damaged by reason thereof. It is further alleged that unstamped whisky is declared by the Alcoholic Beverage Control Act, Kentucky Statutes Supp. 1939, Section 2554b-97 et seq., to be contraband, and that the Commonwealth of Kentucky is entitled to the custody and ownership thereof unless some person within 90 days after the trial in the county court establishes title or right to the possession thereof; that said whisky was properly stamped after it was taken into possession by said field representatives of the Department of Revenue, and...