Wheeler v. Schulman

• Decision Date: 02 June 1915
• Parties: WHEELER v. SCHULMAN.
• Court: Kentucky Court of Appeals

176 S.W. 1017

165 Ky. 185

WHEELER v. SCHULMAN.

Court of Appeals of Kentucky.

June 2, 1915

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Ben Schulman against Charles C. Wheeler. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Robt. L. Page and Chas. P. Johnson, both of Louisville, for appellant.

B. F Washer, of Louisville, for appellee.

HURT J.

The appellant and the appellee are justices of the peace for Jefferson county, Ky. The district in which Schulman was elected is composed of the Fourth, Fifth, Sixth, and Seventh wards of the city of Louisville, and is known as the Sixth magisterial district of Jefferson county, Ky. and in which the appellee has an office for the transaction of his business as a justice of the peace, and in which he holds his court. The appellant, C. C. Wheeler, is also a justice of the peace, and was elected in the Second magisterial district of the county, which is situated in Jefferson county, but without the city of Louisville. The appellant has an office at Buechel, which is within the Second magisterial district and where he holds court, and transacts other business connected with the office of justice of the peace. The appellant, in addition to the office which he has at Buechel has also established an office at 233 South Fifth street, in the city of Louisville, and at a point which is within the Sixth magisterial district of the county, where he tries causes and maintains a court, and transacts the official duties of a justice of the peace.

The appellee, individually and in his capacity as justice of the peace for Jefferson county, filed a petition in equity in the Jefferson circuit court, in which he alleged that the office held by him was one of emolument and profit, and that the income from it depended upon the number of matters brought to him by the general public, and that he was dependent on the fees and costs resulting from the business of his court and of his office as justice of the peace to provide the expenses of his court and any gain to him as the incumbent of the office; that the appellant had established a court for hearing and determining causes and the transaction of other business as a justice of the peace, at Buechel, which was within the Second magisterial district, and that thereafter the appellant had established and maintained another court at 231 South Fifth street, and within the boundary of the Sixth magisterial district, and there assumed to hear and determine causes and transact the other duties of his office, and that unless restrained he would continue to do so, and was transacting business which properly belonged to the court and office of the appellee, which resulted in uncertainty and confusion in the administration of justice, and also greatly reduced the receipts of his office, and further alleged that the appellant was without right, power, or authority to hold or maintain a court outside of the territorial limits of his district, and that his acts in so doing were a violation of law and a breach of his official duties, and an infringement upon the rights and prerogatives of the appellee, and asked for an injunction against the appellant restraining him from maintaining a court and place for determining causes, or the transaction of any other business as a justice of the peace at 231 South Fifth street, or at any other place without the boundaries of the Second magisterial district, and from attempting to exercise jurisdiction as a justice of the peace, within the district of the appellee, or elsewhere without the Second magisterial district.

The appellant, by answer, denied that he was securing business which would otherwise go to the office of the appellee, if the appellant held his court in the territorial limits of his district, or that the appellee was deprived of a substantial amount of business on account of the court of appellant held within the Sixth magisterial district, or that any injury would accrue to the public by reason of his so doing, or that he was without jurisdiction or authority or right in establishing and maintaining an office and court within the Sixth magisterial district, or that his so doing constituted a breach of his official duties or obligations, or an infringement of the rights and prerogatives of the appellee, or that a judgment rendered by him at a place without the territorial limits of his district was invalid, and by another paragraph alleged that suits tried before him as a justice of the peace, in the court held by him within the district of the appellee, were there tried and determined by the consent and agreement of the litigants in such cases, and that the defendants in such cases, by their acts and conduct, waived any right of objection they might have to the jurisdiction of the court of appellee, sitting within the limits of the Second magisterial district. These affirmative allegations were denied, and upon these issues proof was taken and a judgment rendered by the chancellor, which enjoined the appellant from maintaining a place for, or the hearing and determination of, causes, or the transaction of any other business pertaining to the office of a justice of the peace, at any place without the Second magisterial district, and from in any way attempting to exercise jurisdiction or authority of justice of the peace without the limits of the second magisterial district, but adjudged that the prohibition and restraint placed upon appellant by the judgment would not apply to hearing or disposing of a case or matter by the defendant without his district, where the voluntary consent of both parties was present, or where it was done under the conditions provided for in section 1090, of Kentucky Statutes, or in the administering of an oath.

The appellant excepted to this judgment and prayed an appeal to this court, which was granted.

This unseemly scramble for the perquisites of a judicial office presents some novel questions.

The office of justice of the peace is a very ancient one, and the history of its creation is lost amid our judicial antiquities, and the people, through their legislators and constitution makers, still maintain its existence, as one of the necessities of our system of government, with a tenacity of opinion, doubtless founded upon many reasons that are now lost. Under our Constitution and statutes, however, tthe jurisdiction, powers, duties, and emoluments of the office of justice of the peace are controlled and restricted by the terms and provisions of the Constitution and the statutory enactments upon the subject. The office is one, the emoluments of which depend almost entirely upon the fees provided for the exercise of its duties. Without the fees attached to the performance of its duties, the one holding the office could not maintain a place for the holding of his court, nor afford to give his time and attention alone to the wearing of its honors. The appellee had a right to maintain this suit for the reasons stated.

A justice of the peace duly elected or appointed, has a right to protect his office from invasion, and by injunction prevent one unlawfully taking from him the perquisites belonging to his office. 24 Cyc. 415; Wright v. Miller, 1 Lack. Leg. N. (Pa.) 46; Poyntz, etc., v. Shackelford, 107 Ky. 546, 54 S.W. 855, 21 Ky. Law Rep. 1323. The proof shows that within five years last past the appellant has heard and disposed of probably 2,500 cases at the court in the appellee's district during each year.

The chief question presented for determination upon the record is: Where must a justice of the peace maintain his court? Must he maintain his court in the district for which he is serving, or may he hold a court wherever he may happen to be within the limits of the county? or can he move the place for holding the court of which he is judge into a district other than the one for which he was elected and serving, and there maintain it and administer justice, alongside of the court, which is being maintained therein by the justice who was elected and serving for that district? Manifestly, if one justice of the peace may maintain a court within a district for which he was not elected, every other justice in the county could do likewise, and the anomalous situation would be presented, of eight justices' courts, in full operation in one district of the county, while the other districts of the county would substantially be left barren of whatever benefits such courts may bestow.

The makers of the Constitution provided, among other courts, the court of a justice of the peace, by section 142 of that instrument, which is as follows:

"Each county now existing, or which may hereafter be created, in this state, shall be laid off into districts in such manner as the General Assembly may direct; but no county shall have less than three nor more than eight districts, in each of which districts one justice of the peace shall be elected as provided in section ninety-nine. * * * The jurisdiction of the justices of the peace shall be coextensive with the county, and shall be equal and uniform throughout the state. Justices of the peace shall be conservators of the peace, * * * and shall vacate their offices by removal from the districts, respectively, in which they may have been elected."

Section 99 of the Constitution provides for the election, "in each justice's district one justice of the peace and one constable, who," etc. Other sections of the Constitution provide that there shall be a circuit court and a county court established in each county, but, as in case of a justice of the peace, it is silent as to where such courts shall be held. It is manifest, however, that the...