C. Wheeler. From a judgment for plaintiff, an infringement upon the rights and prerogadefendant appeals. Reversed and remanded. tives of the appellee, and asked for an inRobt. 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 junction 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 dis trict. 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 judg ment 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 tions. 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. [1] 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. 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 Constitution makers, by section 142, did not intend merely to create a judicial individual and to denominate him a justice of the peace, but the purpose of the section was to create and establish a court to be holden and presided over by an officer to be denominated a justice of the peace. The article created a court, and the justice of the peace was made the judge While the article provides that the of it. jurisdiction of the justices of the peace shall be coextensive with the county, it vested him with no jurisdiction in civil matters at all. It expressly provided that he should be a The laws impose conservator of the peace. many duties upon a justice of the peace. Some are ministerial duties, and others judicial. In the execution of his office, many of his duties are clerical. It is axiomatic, however, that he cannot perform judicial functions, except in the court presided over by [2] The chief question presented for deter- him. The purpose of the Constitution to cremination upon the record is: Where must a ate and establish one justice's court in each justice of the peace maintain his court? magisterial district, is as evident as its purMust he maintain his court in the district pose to permit of the election of only one for which he is serving, or may he hold a justice of the peace in each of such districts. court wherever he may happen to be within The court of the justice of the peace for a the limits of the county? or can he move the magisterial district could no more be lawfully place for holding the court of which he is held without the territorial limits of such disjudge into a district other than the one for trict, than the county, or quarterly, or cirwhich he was elected and serving, and there cuit courts, for one county could be lawfully maintain it and administer justice, alongside held in another county. The only court of of the court, which is being maintained which a justice of the peace is judge, is therein by the justice who was elected and the one established in the district for which serving for that district? Manifestly, if one he was elected and serves. The justice's justice of the peace may maintain a court court for a magisterial district is an instiwithin a district for which he was not elect- tution established for that district, just as ed, every other justice in the county could do the county and circuit court of a county is an likewise, and the anomalous situation would institution established for that particular be presented, of eight justices' courts, in full operation in one district of the county, while county. The conclusion then necessarily follows, that the justice's court for a magistethe other districts of the county would sub-rial district must be held within the limits stantially 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 of the district, and if the justice of the peace for that district would hold his court, he must do so within the district, because he is or place in which the court must be held, but leaves it a matter within the discretion of the justice, except that it must be held within the district, and at a place of which the litigants have notice. While the jurisdiction conferred by the Constitution upon a justice of the peace is coextensive with the county, the Legislature has authority to regulate and control the exercise of such jurisdiction. Else, of what does he have jurisdiction? The Constitution says that he is a conservator of the peace, but how will he go about conserving the peace until the Legislature has provided a means to that end, by providing methods of procedure, and the time and place and manner of their exercise? The statute clothes the circuit judge with the prerogatives of a conservator of the peace throughout the state, but he cannot exercise jurisdiction in a court, except in the counties of the district for which he is elected, unless assigned by the Governor to preside in an established court, of which the regular judge is absent or disqualified. A reference to the statutes governing the procedure and exercise of the jurisdiction of a justice of the peace, showing the construction placed upon section 142 of the Constitution by the legislative department of the government, bears out the construction herein placed upon it. Sections 1085, 1086, 1087, 1088, 1089, and 1090 of Kentucky Statutes (Carroll 1915), and title 16 of the Civil Code, govern the regular procedure in justice's court, as pertains to civil actions, except in certain instances of special proceedings, which are fully controlled and regulated by the statutes providing for them, as proceedings in forcible entry and detainer, etc. The only authority for a justice of the peace to hold a court for the trial of civil causes, except in certain special proceedings, is section 1085, supra, which provides that a justice of the peace shall hold a court for the trial of civil causes in his district, once in each three months, at a time designated by the county court. There is no provision authorizing him to hold a court for the trial of civil causes, at any other place, than in his district, except as provided by section 1090, supra, and section 1108 of Kentucky Statutes. Neither is there any provision for a justice holding a court for the trial of civil causes, at any time, except at the times designated for the regular terms of his court, except as provided in section 721, Civil Code, supra, and section 1107, Kentucky Statutes. Section 1090, supra, provides that if a justice intends to be absent from the county for more than one week, or for any cause he is unable to act, he shall deposit his records with some convenient justice, who may act for him. If the records are not deposited with another justice, during the absence or disability of the justice whose duty it was to act, any justice who can get possession of the records may act, and if a justice vacates his office, the nearest in section 1090, until the vacancy is filled. Section 1108 provides that if a justice, before whom a cause is returned for trial, does not attend or cannot try the same, any other justice of the county may attend and try and decide the same. Section 721 of the Civil Code provides that if a provisional remedy made by a justice, in an action within the jurisdiction of his court, be served or levied, the trial of the action and the disposition of the order may take place at any time after five days' notice, given by either the plaintiff or defendant, and if the justice be absent or unable to act, the officer may return the case for trial before the most convenient justice. Section 1107, Kentucky Statutes, provides that when a cause is brought by change of venue to a justice court he may try it out of term time. Section 710, Civil Code, with reference to procedure in civil cases in a justice's court, provides that if the defendant reside in the county in which the summons is issued, it shall be returned for trial in the district of his residence, unless he otherwise consent in writing, signed by him and indorsed on the summons; or, unless the justice in such district be interested or refuse to act, in which case it shall be returned in an adjoining district. This statute and 721, supra, clearly imply the existence of a justice's judge of such court resides, and seems to be a salutary regulation of the exercise of the jurisdiction of the justice. He may issue the original process against the defendant who resides in any portion of the county, but it becomes the duty of the officer execut ing the process to return it for trial to the justice's court in the district in which the defendant lives, unless he consents in writing otherwise, or the justice in the district is interested, or refuses to act, when it shall be returned to the justices' court in an adjoining district. court peculiar to the district in which the Counsel rely upon the case of Galot v. Pearce, 38 S. W. 892, 18 Kỵ. Law Rep. 1004, as holding this section of the Code to be contrary to section 142 of the Constitution, supra, and therefore void, but a reading of the case demonstrates that the The section reopinion does not so hold. ferred to in the case of Galot v. Pearce, was section 832, of Myers Code, as amended, and it provided that a judgment rendered in a justice's court against a defendant, who did not reside in the district when the judgment was rendered, or when the process was served, should be void. The court held that such portion of the act was attempted to make the judgment void, when judgment was rendered against a defendant who did not reside in the district, was contrary to the Constitution, and further, that the proper remedy for such a defendant was to have made a motion in the justices' court to transfer the case to the justice's court in the district of the defend The superior court, in the case of Venhoff & Co. v. Morgan, etc., 11 Ky. Law Rep. 276, expressly held that when a justice rendered a judgment outside of his district, where he assumed to hold his court regularily, it was void. In that case, it was also held that the Legislature had the undoubted power to fix the time and place for the holding of a justice's court. The court further said: "He becomes a judge when he is appointed or elected, but he becomes a court only when, at the time and place designated by law, he performs judicial duties." The Legislature has fixed the place of a justice's court for the trial of civil causes, at a place within his district. The Legislature has authorized the county court to fix the time for the holding of a justice's court for the trial of civil causes, and it cannot be held at any other time, lawfully, except in the state of case provided for in section 721, Civil Code, supra, and section 1107, Kentucky Statutes. When a justice acts in the states of case provided for by section 1090, supra, and 1108, he is not then holding the court provided for his own district, but he is holding the court for the absent or disqualified justice, and for the district for which the absent or disqualified justice is serving, or in case of a vacancy in the office for the district in which the vacancy exists. These sections of the statute are designed to provide a judge for a justice's court, in the event of the absence or disqualification of the justice provided by law to act, or a vacancy in the office in such district, similar to the special judge provided by law for a circuit court in the event of the absence or disqualification of the regular judge. A justice of the peace cannot hold a court for the trial of causes, by consent of the litigants, in a district other than the one for which he was elected and serves, because the law provides for only one such court in a district, and the result of permitting another to be set up and maintained by consent of parties, would be maintaining two such courts in the district, where the law provides for only one. The proceedings in a court held by consent of parties would amount to an arbitration, and its judgments would be controlled by the laws governing such. "Courts are to administer justice 'by due course of law,' and they have no power to render the transaction of such business, or the trial of judgments except at terms prescribed by law for such cases, or at which such business is allowed by law to be done. Such procedure would be, emphatically, coram non judice, and the judgment void, because forbidden by law." When a case is pending in a justice's court for a district, and the justice, whose duty it is to hold such court, is absent or disqualified, or for any reason cannot or will not act, or in case of a vacancy in the office in that district, the parties to such suit may agree upon another justice to sit in the case, in the court of that district, but he may not set up his own court in such district; or a judge may be provided for such court, as provided by sections 1090 and 1108, Kentucky Statutes. as The justice of the peace may administer oaths, at any place in the county, and as a Conservator of the peace may cause the arrest of any one violating the law, in his presence, at any place in the county, and may issue warrants and summons, at any place in the county, against any persons who are charged with the violation of the criminal or penal laws, at any place in the county, and may try such offenders may be lawfully brought before him for trial, either upon process issued by him or upon process issued by any other justice of the peace, at any time, giving the parties reasonable opportunity to prepare for trial, but the trials must be in the court of his own district, and not elsewhere, except when he may be required to hold an examining trial of one charged with a homicide, or is required to hear a trial upon a return upon a writ of habeas corpus or other proceedings, where the statute specially provides that he may act judicially, other than in the court of his own district. The justice of the peace must keep the records of his office and the records of his court at a place within his district, where the people, for whom the court was specially established, may have the benefit of the use and existence of such records, and that the place of their location may be known. The judgment appealed from not being in conformity with this opinion, it is therefore reversed and the cause is remanded, with di In Johnson v. Higgins, 3 Metc. 575, this rections to render and enter a judgment in court said: conformity to this opinion. A fire policy stipulated that with insurer's consent an interest under the policy might exist in favor of a mortgagee on conditions attached to the policy, and that insurer should not be liable for a greater proportion of any loss than the amount insured bore to the whole insurance, valid or not, and permitted other insurance. Subsequently insured gave a mortgage, and a rider attached to the policy provided that loss, if any, should be payable to the mortgagee as his interest might appear, but that in case of any other insurance the insurer should not be liable for a greater proportion of any loss than the sum insured bore to the whole amount of insurance on the property. Insured had procured another policy, of which the mortgagee had no knowledge. Held, that the contract evidenced by the rider was distinct from the policy, and protected the mortgagee to the extent of his interest, to the amount of the face of the policy, if necessary, and the stipulation as to contribution in the policy or in the rider did not limit the mortgagee's rights. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1444-1447; Dec. Dig. 581.] 2. INSURANCE 146-CONTRACTS - REPUGNANT STIPULATIONS. Where two clauses of a fire policy are so repugnant that they cannot stand together, the first governs, rather than the last, especially where the first clause expresses the chief object of the policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. 146.] 3. INSURANCE 493-FIRE INSURANCE-"ToTAL Loss"-WHAT IS. A wooden structure is a total loss within Acts 1909, c. 447, making an insurer liable for the amount of the policy in the event of a total loss, where the roof and the walls, excepting on one side, and part of the front porch were wholly destroyed, and the wall on the one side and part of the porch were so badly burned in places that the lumber was not worth the labor of removal, and the walls standing were considered so dangerous by municipal authorities that they were required to be taken down, though the floor remained uninjured, except that a large hole was burned through it, and though the brick foundation on which the structure stood was unimpaired; since the identity and specific character of the structure as a building were obliterated. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1266-1268; Dec. Dig. 493. For other definitions, see Words and Phrases, First and Second Series, Total Loss.] 4. INSURANCE 493-FIRE INSURANCE-LIA BILITY OF INSURANCE COMPANY. An insurance company may comply with Acts 1909, c. 447, authorizing insurance companies to contract with insured that he shall maintain insurance on the property to the extent of an agreed proportion of the actual cash value thereof, and providing that insured, failing so to do, shall be a coinsurer to the extent that his insurance then in force is less than the amount of such agreed proportion, and may also stipulate the insurable value of the property, but its failure to do either does not prevent the applicability of the provision making insurer liable for the amount of the policy in the event of a total loss. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1266-1268; Dec. Dig. 493.] 5. INSURANCE 581 FIRE INSURANCE RIGHT OF MORTGAGEE AGREEMENTS BETWEEN MORTGAGOR AND INSURER-EFFECT. An agreement between a mortgagor and a fire insurance company as to the amount of loss payable to the mortgagee as his interest may appear, made without knowledge of the mortgagee, is not binding on him, and he may recover the full amount of the policy in the event of a total loss, if necessary to satisfy his interest. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1444-1447; Dec. Dig. 581.] 6. INSURANCE 550 Loss-ESTOPPEL. FIRE INSURANCE One may show that a fire loss is more than that stated in the proofs, unless he has been guilty of fraud, or insurer has acted on the proofs in such a manner that to permit further proof of loss would be inequitable. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1359-1361; Dec. Dig. 550.] Certiorari to Court of Civil Appeals. Suit by Eugene Laurenzi and another against the Atlas Insurance Company and another. There was a judgment of the Court of Civil Appeals modifying a decree for complainants, and defendants bring certiorari. Decree of the Court of Civil Appeals modified, and that of the chancellor affirmed. Randolph & Randolph, of Memphis, for plaintiffs. R. Lee Bartels, of Memphis, for defendants. NEIL, C. J. The bill was filed by the parties complainant, named as trustees under a deed of trust, seeking to recover from the defendants upon a fire insurance policy issued to one S. H. Hardin on February 13, 1911, insuring him against loss by fire to the premises described in the policy. The amount claimed was the face of the policy, $1,600. The German Fire Insurance Company was made a party defendant, upon the theory that it, having reinsured the risk of the Atlas Company, which issued the policy, was liable for the contract of that company. The right of the plaintiffs as trustees to recover under the policy was predicated upon a mortgage or trust deed, naming them as trustees, executed by S. H. Hardin, the insured, taken in connection with a mortgage clause attached to the insurance contract. The trust deed and insurance policy were, respectively, made a part of the bill, the material provisions thereof being as follows: The policy of insurance contains the fol lowing: "If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or any person or corporation hav ing an interest in the subject of the insurance, other than the interest of the insured as described herein, the conditions herein before contained shall apply in the manner expressed in such provisions and conditions of the insur ance relating to such interest as shall be writ ten upon, attached to, or appended hereto. * ** "This company shall not be liable under this policy for a greater proportion of any loss on the described property than the amount |