Weaver v. Toney

Decision Date09 December 1899
PartiesWEAVER, Mayor, et al. v. TONEY, Judge, et al.
CourtKentucky Court of Appeals

"To be officially reported."

Petition by C. P. Weaver, mayor, and others, for a writ of prohibition against Sterling B. Toney, judge of the law and equity division of the Jefferson circuit court, to restrain him from proceeding further in the case of John Young Brown against Charles P. Weaver, mayor of the city of Louisville, and others. Writ granted.

Kohn Baird & Spindle and Zach Phelps, for plaintiffs.

Helm &amp Bruce, for defendants.

HAZELRIGG C.J.

At about midday of Monday, November 7, 1899,--the day of the recent state election,--the Honorable John Young Brown, the gubernatorial candidate of the Honest Election Democratic party, filed his petition in equity in the Jefferson circuit court, law and equity division, against Charles P. Weaver mayor of the city of Louisville; Lyons, Tierney, and Suter, members of the board of public safety; Jacob H. Haager, chief of police; and some 750 other defendants, who were officers of election at the various voting precincts in Louisville on the day in question. The purpose of the suit was to have an injunction commanding the election officers to admit to the voting places as soon as the polls should close, at 4 o'clock, one person as inspector at each voting place, as representative of the Honest Election Democratic party. The vital ground of complaint was that the county board of election commissioners for Jefferson county, acting by a majority, had theretofore (that is, prior to November 6, 1899, as the petition was sworn to on that date) issued written instructions to the officers of election to the effect that inspectors or representatives of the Honest Election Democratic party were not to be admitted to the polls, and that unless controlled by the order of the court the officers of election would obey these instructions. The plaintiff further averred that he feared and charged that the mayor, board of public safety, and chief of police either had issued, or would cause to be issued and enforced unless restrained by the court, instructions to the police not to allow such inspectors to enter the voting places, and to arrest any who attempted to do so. It was further averred that irreparable injury would result to plaintiff from the delay in giving notice of the application for the injunction, and a temporary order was therefore prayed for, embodying the relief sought in the petition; the temporary order, indeed, embodying the whole of the relief sought. Such orders were thereupon at once issued, signed by the judge of the court mentioned, commanding the election officers to admit at the close of the polls the inspectors of the party named, provided they presented a certificate from one Wright, chairman of the committee of the Honest Election Democratic party, and commanding the mayor and board of safety not to give to any policeman of the city any order to interfere with such inspectors, and commanding the chief of police to instruct the policeman that such inspectors had the right to enter the voting places and witness and inspect the count. The orders thus obtained further recited that on November 14, 1899 (time and place stated), the plaintiff would move the court to grant an injunction pursuant to the prayer of his petition. Subsequent to the granting of the temporary writ, and prior to the day on which the injunction proper was to be asked, on complaint by certain inspectors of the party in the order named, who had been refused admittance to the voting places, rules of contempt were issued by the judge who had issued the writ of the 7th against certain of the defendants in the Brown-Weaver action, and certain others, requiring them to appear and show cause why they should not be punished for disobeying the order of the 7th of November. Thereupon the persons so ruled, together with other defendant in the Brown-Weaver suit, filed their petition in this court on November 15th for an order prohibiting the judge of the court aforesaid or that court from proceeding further with the trials for contempt. A temporary stay was granted, and a day set for full hearing, which having been had, after answer filed by the judge aforesaid, the case is now out for decision.

The first question raised is as to the jurisdiction of this court to make the order. The case has been presented by counsel as one involving solely the jurisdiction of the lower court to issue the mandatory order of the 7th of November, and for the present we shall so consider it. Assuming, then, preliminarily, that the lower court had no jurisdiction to enter such an order, the question remains, has this court--admittedly one of appellate jurisdiction only--power to control inferior courts when acting outside of their jurisdiction? In Preston v. Vault Co., 94 Ky. 295, 22 S.W. 318, Goldsmith v. Owen, 95 Ky. 420, 26 S.W. 8, and Association v. Harbeson, 51 S.W. 787, the power of this court to issue writs of prohibition seems to have been assumed, rather than in terms asserted; the writs sought being denied because it did not appear that the inferior courts were proceeding out of their jurisdiction. All these cases present very persuasive evidence in support of the jurisdiction. And in Hindman v. Toney, 97 Ky. 413, 30 S.W. 1006, this court expressly settled the question, and, on the petition of Hindman, granted a writ prohibiting one of the circuit judges of Jefferson county from passing on the case, which properly had been assigned to another division of that court. And the writ was awarded, it may be said here, although by express statute (Ky. St. § 1028) no proceedings in a case were to be invalid because prosecuted in the wrong branch of the Jefferson circuit court. It was hardly a question of jurisdiction in the lower court, therefore, but rather a question of preventing confusion and conflict in the conduct of business in the four branches of that court. It was held in that case that this court, having a discretion, ought not generally to issue writs of prohibition, when adequate relief can be afforded complainants by resort to the "revisory power,"--meaning the appellate jurisdiction of this court. In view of these cases, it must be regarded as settled law that in proper cases, where the inferior tribunal is proceeding out of its jurisdiction, the power of this court may be invoked to stay the exercise of such jurisdiction; and it would also seem, in certain classes of cases, that even where the inferior tribunal has jurisdiction this court may likewise interfere, if the remedy by appeal is not entirely adequate, or if the court, in the exercise of its discretionary powers, shall deem it necessary to so interfere.

Looking at the case for the present in the light of the way it has been presented (that is, as involving the jurisdiction of the lower court), we find it to be contended first that that tribunal is without power to inflict punishment for disobedience of its order of the 7th of November, because that order was made without notice to any of the parties affected by it. It is conceded that the order was issued without notice, and it is clear that, if notice was necessary, disobedience of it would not be punishable contempt. That notice is necessary is, we think, equally clear; otherwise, there would be judgment entered, final in its character, and decisive of the whole question before the court, without citation or opportunity offered to the parties interested to resist the application. To proceed without notice would be a final adjudication upon and a deprivation of a right, without due process of law. Under general law, as well as under our statute, there must be notice in mandamus proceedings before such an order can be granted. And this is equally true when the proceeding is for an injunction. The statute is explicit, and declares that "an injunction shall be granted only upon reasonable notice, in writing, to the party sought to be enjoined, of the time and place of the application therefor, and of the court or officer to whom the application is to be made." Civ. Code Prac. § 276 amended by Laws 1894, p. 201. Where, however, the court or officer to whom the application for an injunction is made "shall be satisfied by the facts set forth in the affidavit of the applicant or by other evidence, that irreparable injury will result to the applicant from the delay of giving notice, the court or officer may enter a temporary order restraining the act or acts sought to be enjoined, or it may be mandatory in its nature, if the case so require." This provision for a temporary restraining order has no application to the case at hand. The order is not a mere temporary restraining order, mandatory in its nature. The relief sought and granted is the whole relief obtainable. When the order is obeyed the end of the litigation is reached. There is no mere temporary stay, with reservation of the rights of parties until they can be heard. If a railroad is about to stop operating a road it is under a contract to operate, it may be enjoined from stopping, and be commanded to continue the operation temporarily. This may result in some temporary inconvenience or pecuniary loss, but the subject-matter of the litigation is left for future investigation, and the rights of the parties are reserved. This is a fair illustration of what this provision means. And so it is further provided in the section supra that the court or judge "shall set forth a reasonable time and place not to exceed ten days from the day upon which the order is made, at which the applicant shall move the court or judge to grant the injunction," etc. If we attempt to apply these Code provisions to a case where the act commanded to be done is...

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