Western Oil Refining Co. v. Wells

• Decision Date: 19 March 1918
• Citation: 201 S.W. 473,180 Ky. 32
• Parties: WESTERN OIL REFINING CO. v. WELLS, COUNTY JUDGE, ET AL.
• Court: Kentucky Court of Appeals

201 S.W. 473

180 Ky. 32

WESTERN OIL REFINING CO. v. WELLS, COUNTY JUDGE, ET AL.

Court of Appeals of Kentucky.

March 19, 1918

Proceeding for writ of prohibition by the Western Oil Refining Company against C. W. Wells, County Judge, and others. Motion denied and petition dismissed.

W. S Smith, of Glasgow, and Leslie W. Morris, of Frankfort, for plaintiff.

H. A Birkhead, of Owensboro, for defendants.

CLARKE J.

This is an original proceeding filed in this court, seeking a writ of prohibition to prevent the defendants, C. W. Wells, county judge of Daviess county, from trying, and H. A. Birkhead county attorney, from prosecuting, the plaintiff for the offense of selling to merchants in this state 26 barrels of oil without first having the oil inspected, and the barrels containing it branded or marked by the inspector, as is required by the provisions of section 2202 of the Kentucky Statutes, the penalty for the violation of which is prescribed by section 2208 of the same statutes.

It is alleged in the petition that the plaintiff has been arraigned before the defendant Wells as county judge of Daviess county on 26 warrants for an alleged sale of 26 barrels of oil without their having been inspected as required by the statute, and that, unless the writ issues, the defendant Wells, constituting the court, and the defendant Birkhead, as the prosecuting officer, will proceed to try the warrants, and that plaintiff is not guilty, because the sale of the oil was not effected in Kentucky, and the transaction therefore does not come within the purview of the statute. The denial of the sales having been effected in Kentucky is based upon the fact that plaintiff is a foreign corporation engaged in the handling of oil, and is located and has its place of business in Indianapolis, Ind.; that the sales complained of were transacted through drummers or traveling soliciting agents in the employ of plaintiff, who took orders for the oil from the merchants to whom it was afterward shipped, which orders were sent to the office of plaintiff at Indianapolis for acceptance or rejection, and that, if accepted, which was done in each of the cases complained of, the oil was shipped by common carrier to the merchant who ordered it f. o. b. car at Indianapolis; that after the oil was loaded into the car at the latter place plaintiff had no further interest in it, and that the carrier was constituted the agent of the purchaser to transport the oil to the place of consignment. Defendants have filed no pleading except a demurrer to the petition, which requires us to accept as true the facts alleged therein.

It further appears in the petition--of which fact we would take judicial knowledge without such allegation--that the penalty for the offense charged is a fine of $20 for each barrel of oil illegally sold. The allegation is also made that the county court of Daviess county is without jurisdiction to try the offenses with which plaintiff is charged, but no force can be given to this averment, since other parts of the petition, as well as facts within the judicial knowledge of the court, conclusively show that the county court has jurisdiction of the offense. Subsection 5 of section 13 of the Criminal Code confers upon courts of a justice of the peace jurisdiction concurrent with city and police courts of prosecutions for offenses the punishment of which is limited to a fine of not exceeding $10, and concurrent jurisdiction with circuit courts in prosecutions for offenses the punishment of which is limited to a fine of $100 or imprisonment not exceeding 50 days, or both such fine and imprisonment. Subsection 6 of the same section confers the same jurisdiction on judges of the county courts as subsection 5 confers upon a justice of the peace. It is therefore manifest that the county court of Daviess county, over which the defendant Wells presides, has jurisdiction to try the offenses here involved, since the fine is $20, no more, no less.

If it should be admitted, as is insisted for the plaintiff, that the transactions here involved did not constitute a sale of the oil in Kentucky, and that they constituted and were transactions in interstate commerce, (questions which are not necessary to here determine), it would not follow that the county court of Daviess county was without jurisdiction to try the prosecutions, because if such facts constitute, a defense, and the court has jurisdiction to try the offense, it would necessarily be a part of its duty in the exercise of its jurisdiction to give the plaintiff here, defendant in the warrants, the benefit of that defense. In other words, if that court has jurisdiction of the offense entitling it to hear and try the prosecution, it has jurisdiction to hear and try all questions which might lawfully be raised and presented both by the commonwealth and the defendant. It is not even alleged in the petition that the defendant Wells, as judge of the county court of Daviess county, was threatening to or would decide any question adverse to the plaintiff here upon a trial under the warrants, although this would add nothing to the plaintiff's case if the allegation had been made. This court in many recent cases has had before it for consideration the question of its supervisory power as conferred by section 110 of the Constitution, and in every case where presented it has been held that the jurisdiction conferred by that section would not be exercised through the medium of the writ of prohibition unless: (1) The court sought to be prohibited was proceeding, or about to proceed, in a matter over which it had no jurisdiction; or (2) if it did have jurisdiction, that the action about to be taken would result in great injustice to the plaintiff in the prohibition proceeding, and great or irreparable injury to him, and that he had no other remedy by appeal or otherwise. Board of Prison Commissioners v. Crumbaugh, 161 Ky. 540, 170 S.W. 1187; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Greene, Auditor, v. Wolfe, 175 Ky. 58, 193 S.W. 1048; Cohen v. Webb, 175 Ky. 1, 192 S.W. 828; Rallihan v. Gordon, 176 Ky. 471, 195 S.W. 783; Board of Commissioners v. Crumbaugh, 176 Ky. 720, 197 S.W. 401. In the first Crumbaugh Case this court in discussing its power under the section of the Constitution, supra, said:

"Under section 110 of the Constitution this court has power to issue such writs as may be necessary to give it a general control of inferior jurisdictions, and it is well settled that a writ of prohibition may issue in a case like this

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