Commonwealth v. Lyddane

ORIGINAL opinion by JUDGE DuRELLE Reversing. This suit piresents exactly the same questions whieh are presented in Com. v. Carter (this day decided), 55. S. W., 701, the opinion in which is here referred to, with the additional question presented by a special demurrer to the jurisdiction of the circuit court of Franklin county. It [505] is suggested that the constitutional provision (section 59, subsection 1), prohibiting the passage of local or special acts “to regulate the jurisdiction, or the practice, or the circuits of the courts of justice,” etc., necessarily precludes the Franklin Circuit Court from exercising jurisdiction in this case, unless service of summons was had in Franklin county. This contention, if sustained, would effect the repeal of the act of April 24,1880, (General Statutes,. 1888, p. 255), and would result in holding unconstitutional section 976, Kentucky Statutes, as well as section 4169. Section 976, which provides that “the Franklin Circuit Court shall have jurisdiction, in behalf of the Commonwealth, of all causes, suits and motions against clerks of courts, collectors of public money, and all public debtors or defaulters, and others claiming under them; and for this purpose its jurisdiction shall be co-extensive with the State,” is, as said by Judge Grace in Com v. Grand Cent. Building & Loan Ass’n (Ky.), 30 S. W., 626, “almost a literal copy of the former statute under the old Constitution in force in Kentucky for more than forty years, which statute has been commonly referred to as the ‘fiscal statute/ and the Franklin Circuit Court as the ‘fiscal court of the State.’ ” There are other sections of the Kentucky Statutes which are mere substantial repetitions of various provisions of the old fiscal statute. But we think the juris, diction of the Franklin Circuit Court in this class of proceedings by the Commonwealth is saved by sections 125 and 126 of the Constitution. The former section provides for the establishment of a circuit court in each county now existing, or which may be hereafter created, and section 126 provides, “The jurisdiction of said court shall be and remain as now-established, hereby giving to the General Assembly the power to change it.” Undoubtedly, as es506 tablislied at the time of the adoption of the Constitution the Franklin Circuit Court bad 'jurisdiction of this class of cases. Judgment reversed for further proceedings consistent with this opinion. Chief Justice Hazelrigg and Judge White disseniting.