Campbellsville Tel. Co. v. Patteson

Opinion op the court bt JUDGE HOBSON — Granting writ. On September 17, 1902, T. E. Green filed in the Taylor circuit court his petition against the Campbellsville Telephone Company and the city of Campbellsville, in which he alleged that he was a resident of Campbellsville, the owner of real and personal property therein, and a taxpayer; that the Campbellsville Telephone Company, a corporation created under the laws of this State, having its principal office at Campbellsville, had constructed its wires and poles and was operating an exchange in said city, claiming the exclusive franchise to operate and maintain same in the city for the period of 15 years from the 23d 0av of April, 1909, under authority of ordinances enacted by the city council of Campbellsville; that these ordinances were in conflict with section 164 of the Constitution of [57] the State, and in violation of section 3636, Kentucky Statutes, and were void. He prayed an order prohibiting the telephone company from digging hole®, erecting poles or stringing wires thereon, in front of his residence, or in or over the streets or alleys of the city, and that the ordinance be declared null and void. On the-filing of the petition the circuit judge made a temporary order of prohibition, as prayed in the petition, during the pendency of the motion, and until the order of the court jn the action. The telephone company thereupon, on the 24th . of September, filed in this court its petition against the circuit judge, setting out the above facts, and praying a writ of prohibition against him, prohibiting him from enforcing the order he had entered, and commanding him to treat the same as null and void, on the ground that he was proceeding in the matter without jurisdiction. 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. Under this provision it has been held in a number of cases that this court has power to grant a writ of prohibition where a circuit judge is proceeding without jurisdiction. See Railroad Co. v. Miller (23 R., 1714) 66 S. W., 5, and cases cited. Of course, no inquiry can be made in such a proceeding as to the regularity of the action of the circuit judge, if he had jurisdiction. However erroneous it may have been, his action can only be reviewed by appeal, if he had jurisdiction to act at all. No question, therefore, arises as to the sufficiency of the petition that was presented to him. The only question is did he have power to grant a writ of prohibition in the premises? The order can not be treated as an injunction, for the reason that it appears from the record that an injunction had been granted, which was dis [58] solved by a judge of this court, and under the Code an injunction can not be obtained where one injunction has already been dissolved. The order must therefore be treated as an order of prohibition, and was unwarranted if the circuit judge was without authority to grant a writ of prohibition in such a case. Section 3639, Kentucky Statutes, is relied on as conferring such jurisdiction: “The validity or constitutionality of any city ordinance, by-law or rules of the fifth class cities shall be tried by a writ of prohibition from the judge of the circuit court in which said city is located with right of appeal by either party to the court of appeals.” In Patton v. Stephens, 77 Ky., 324, a similar provision of the charter of the city of Covington was before this court. That provision was in these words: “The validity of the ordinance shall be tried by writ of prohibition from the circuit court, which may be granted by any circuit judge out of term, or by the court having jurisdiction over said city; and each party shall have the right to appeal or prosecute a writ of error to the court of appeals..” Acts 1849-50, p. 261. Similar" provisions were made in the charters of many other cities and towns, and when, upon the adoption of the new Constitution, general laws were passed for the government of these municipalities, the same provision was made for testing the validity of the ordinance. The provision of the Kentucky Statutes/ is, in substance, the same as that of the charter of the city of Covragton above quoted. Construing this provision, the court said: ‘'-'The remedy here provided can only be invoked by one against whom a proceeding under an ordinance is pending in an inferior court. The writ of prohibition is directed to a judicial tribunal, and not to a legislative body, such as the city council.” This construction of the statute has been acquiesced in by the Legislature, and [59] can .not be departed from after so many years; for it must be presumed that, when the Legislature brought over into the general laws for the government of the cities the provision which had thus been construed, it did so in view of the interpretation which the language had received, and the settled practice under those statutes. This construction harmonizes the statute with the Code of Practice and the well-settled common-law rule. By section 479 of the Civil Code, “the writ of prohibition is an order of the circuit court to an inferior court of limited Jurisdiction p'roliibiring it from proceeding ip a matter out of its jurisdiction.” i\t common law the writ only lay to restrain judicial tribunals from unauthorized judicial acts. It could not be used to prevent the performance of ministerial acts, nor could it be sued to restrain executive officers or private persons or corporations. 16 Ency. Pl. & Prac., 1102, 1108. The reason for the distinction is that the writ of injunction affords an adequate, remedy in actions against private persons or corporations or ministerial officers. The purpose of the statute seems to have been not to change the character of a writ of prohibition which was so well settled, but to authorize the issuance of the writ where persons were proceeded against under ordinancesi which were claimed to be invalid, thus securing them an adequate remedy; for there might be no appeal, and the cost of defending a multitude of suits made it necessary to have some more summary way of testing the validity of the ordinance at the outset. In this case the defendants who were proceeded against by the writ of prohibition were the telephone company. a private corporation, and the city of Campbellsville. No remedy was sought against any judicial officer, and, under the rule of construction announced in the case re [60] ferred to, the circuit judge was not authorized by the statute to issue the writ of prohibition in the contest. The motion is therefore sustained, and the writ of prohibition from this court may issue as prayed in the petition.