Rush v. Denhardt

• Decision Date: 04 May 1910
• Citation: 127 S.W. 785,138 Ky. 238
• Parties: RUSH v. DENHARDT, Judge.
• Court: Kentucky Court of Appeals

127 S.W. 785

138 Ky. 238

RUSH v. DENHARDT, Judge.

Court of Appeals of Kentucky.

May 4, 1910

"To be officially reported."

Separate petitions for writ of prohibition by D. Rush, Joseph Schneider, Sam Cook, McMullins & Higgins, W. A. Lewis Clarence Ewing, Louise Mooney, J. R. Lethridge, and F. C Schoenthaler, against H. H. Denhardt, County Judge. Writs issued.

Sims &amp Rodes, Thomas W. Thomas, Grider & Harlin, T. W. & R. C. P Thomas, Wright & McElroy, and Jno. M. Galloway, for petitioners.

W. B. Gaines and McQuown & Beckham, for respondent.

CARROLL J.

The petitioners filed their respective petitions in this court against the respondent, asking that a writ issue prohibiting the respondent from hearing and determining proceedings against them pending in the Warren county court. The petitioners are merchants who have license under section 4203 of the Kentucky Statutes (Russell's St. § 6145), authorizing them to retail liquor in quantities of not less than a quart, and respondent is the county judge of Warren county. Notice, as provided in section 4208 of the, Kentucky Statutes (Russell's St. § 6150), was executed upon each of the petitioners to appear before the respondent, sitting as the county court of Warren county, and show cause why the license should not be canceled for violating section 4204 (section 6146) of the Kentucky Statutes, making it unlawful for any person having such license "to furnish any liquor to any person who is drunk, or who is a known inebriate, or who is under twenty-one years of age, or to sell any liquor on Sunday, or any other day the law may prohibit the sale thereof," and providing that the license of any person found guilty upon the hearing of such violation should be canceled. It appears from the petitions that, when the petitioners appeared in the county court in answer to the notice, they filed their respective affidavits and moved that the respondent vacate the bench and permit the proceedings to cancel the license to be heard before some other person sitting as judge of the court. The respondent, conceiving that the affidavits did not present sufficient reasons to prevent him from hearing and disposing of the motions, declined to vacate the bench and announced his purpose to hear and adjudge the cases. Thereupon the petitioners filed their petitions in the Warren circuit court and moved that court to issue a writ of prohibition against the respondent to compel him to vacate the bench. The Warren circuit court declined to issue the writ, and the petitioners have brought the matter before us and ask that we direct the writ to issue.

The statute, in section 4208, confers upon the county court ample authority to cancel the license of any merchant found guilty upon a hearing after due notice of violating the law; and so no question is made that the respondent, acting as the county court of Warren county, did not have jurisdiction of the petitioners as well as the subject matter in controversy. But it is insisted that the affidavits filed set out sufficient reasons why the respondent should not hear or determine the matter before him, and that when the affidavits were filed he should have vacated the bench. The affidavit set out that the respondent was elected county judge of Warren county in November, 1909, and that during his candidacy for the office he issued and distributed over the county a paper signed by him, in which he said, among other things of like character: "If I am elected county judge--and if I get your help and that of the rest of the temperance Democrats, I will surely win the race--there will be no saloons in Warren county, or in or out of Bowling Green. The people who want whisky will have to ship it if they use it in this county during my term of office. And I will revoke every license now in existence. It is easy for you to see why the whisky ring and their clackers are against me. I courted their opposition and that of every other violator of the law. I have prosecuted them whenever I have been able to secure evidence, and with the power given to the county judge I can put open saloons and the blind-tiger and every other whisky joint out of business as long as I can have the backing of good people." It further set out that the respondent, pursuant to his written and signed pledge, was actively engaged in an effort to procure testimony showing that the petitioners had violated the law governing the sale of liquor; and that he was personally hostile to the petitioners, and each of them, and was so prejudiced against all persons engaged in the business of selling liquor that he could not give the petitioners a fair and impartial trial. The affidavit contained many other reasons, along this line, why the respondent would not give the petitioners a fair trial; but it seems unnecessary to set it out more in detail. We think there can be no doubt that the affidavit presented good and sufficient reasons why the respondent should not preside at the trial of these cases. The statements contained in it must be taken as true. Indeed, if they could be denied, it would not be competent to do so, nor would the denial have any effect on their sufficiency or confer upon respondent the right to sit if he would not have such right had no denial been made. The settled practice is that the statements in the affidavit must be accepted as true, and the question of its sufficiency tested by what it contained without regard to any denial or explanation the court or judge may see proper to make. Wathen-Mueller & Co. v. Com., 116 S.W. 339; Powers v. Com., 114 Ky. 237, 70 S.W. 644, 24 Ky. Law Rep. 1007; Id., 114 Ky. 237, 71 S.W. 494, 24 Ky. Law Rep. 1350; Givens v. Crawshaw, 55 S.W. 905, 21 Ky. Law Rep. 1619; German Ins. Co. v. Landram, 88 Ky. 440, 11 S.W. 367, 592. 10 Ky. Law Rep. 1039; Kentucky Journal Pub. Co. v. Gaines, 110 S.W. 268, 33 Ky. Law Rep. 402; Massie v. Com., 93 Ky. 588, 20 S.W. 704, 14 Ky. Law Rep. 564.

We do not, however, put our conclusion as to the sufficiency of the affidavit upon the ground that the respondent was hostile to the liquor traffic. The fact that a judge is strongly opposed to the sale of liquor in any form is not of itself sufficient reason why he should not preside in the trial of cases involving infractions of the liquor laws of the state. But, when a judge has publicly pledged and committed himself to revoke the license of every person arraigned before him having license to sell liquor, and is personally hostile to the licensees, it is certainly good reason why he should not try cases involving the revocation of the license. The respondent had virtually determined the cases against the petitioners prior to the time they came before him. It was only necessary that he should sit as the county court of Warren county to go through the form of putting into effect the judgment he had previously formed and expressed. The petitioners may be guilty, but this does not furnish any excuse for the refusal of the respondent to vacate the bench. The evidence may conclusively establish that their licenses should be revoked, but this does not and should not deprive them of the constitutional right to have a fair hearing of their case before an unbiased and fair-minded court. The county judge is a constitutional officer, who has many and important judicial functions to perform. And it is an indispensable requisite to the proper administration of justice that not only county judges, but all judges, should come to the hearing of a cause in such a judicial frame of mind as to be able to give a fair and impartial judgment. Manifestly, the respondent could not do this. But the fact that the affidavit was sufficient to induce a judge having the proper appreciation of the honor and dignity of his office to vacate the bench does not reach the question that the filing of it divested the respondent of jurisdiction to hear and determine the case. If, after the affidavit was filed, the respondent in continuing to sit would be acting outside his jurisdiction, there can be no doubt that the petitioners would have a right to the writ, and that the circuit court could have issued it. Jenkins v. Berry, 119 Ky. 350, 83 S.W. 594, 26 Ky. Law Rep. 1141; Clark County v. Warner, 116 Ky. 801, 76 S.W. 828, 25 Ky. Law Rep. 857; Com. v. Berry, 92 S.W. 936, 29 Ky. Law Rep. 234; Hindman v. Toney, 97 Ky. 413, 30 S.W. 1006, 17 Ky. Law Rep. 286; Weaver v. Toney, 107 Ky. 419, 54 S.W. 732, 21 Ky. Law Rep. 1157, 50 L. R. A. 105; Hargis v. Parker, 85 S.W. 704, 27 Ky. Law Rep. 441, 69 L. R. A. 270.

But the failure of the respondent to do what it seems to us was his plain and unmistakable duty does not give us warrant to issue the writ upon the ground that the affidavit divested him of jurisdiction to hear and determine the cases. The jurisdiction he undoubtedly had to hear and decide was not taken from him by the affidavit and motion. He had the same legal right to dispose of the question raised by the affidavit as ...