125 Ky. 545 | Ky. Ct. App. | 1907
Affirming Lincoln county case and reversing Henry county case.
These cases, involving a common question, are heard together and decided together. The question is the constitutionality of the act of March 14, 1906 (Laws 1906, p. 86, c. 21), amendatory of the local option law, and which is commonly called the “Cammack County Unit Bill.” The Henry circuit court held the act to be unconstitutional. At least, that seems to be the effect of the judgment and opinion of that court. The Lincoln circuit court held to the contrary.
Section 61 of the Constitution of this State reads as follows: “The General Assembly shall, by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of liquors. All elections on this question may be held on a day other than the regular election days.” Chapter'81 of the Kentucky Statutes of 1903 (Carroll’s) relates to intoxicating liquors, and articles 1 and 2 of that chapter are set apart to the local option law. Sections 2554 to 2568, inclusive', deal with the manner of putting the law in force. Those sections provide how, and when elections are to be held for taking the sense of the people of the territory to be affected by the vote. Section 2560 dealt with the effect of the vote upon the territory in which the election was held. It was under this statute that the cases which
The statute passed at the last Legislature, the validity of which is the subject of this litigation, ■reads:
“An act to amend Section 2560 of the Kentucky Statutes, it being a portion of article 1 of chapter 81 of the Kentucky Statutes, entitled, ‘Liquors, Intoxicating. ’
“Be it enacted, etc.
“Section 1. That section 2560 of the Kentucky Statutes, it being a portion of article 1, of chapter 81, of the Kentucky Statutes, entitled ‘Liquors, Intoxicating,’ be, and the same is hereby, repealed, and in lieu thereof it is hereby enacted:
“ (a) No election in any town, city, district or precinct of a county shall be held, under this article, on the same day on which an election for the entire county is held, except that cities of the first, second, third and fourth classes may hold an election on the same day on which an election for the entire county is held. When an election is held in the entire county and a majority of the legal votes cast at said election are' against the sale, barter or loan of spirituous, vinous, malt or other intoxicating liquors, then it shall not be lawful to sell, barter or loan any such liquors in any portion of the county. If at such an election for the entire county the majority of the legal votes cast are in favor of the sale, barter or loan of any such liquors, such election shall not operate to make it legal to' grant license to sell, barter or loan such liquors in any territorial division of such county from which the sale, barter or loan has been excluded by an election held under this article, or by
“ (b) No election shall be held in any election precinct under this act on the same day on which an election is held for the district or city of which the precinct is a part. If at an election held for such entire district or city, the majority of legal votes cast shall be in favor of the sale, barter or loan of spirituous, vinous, malt or other liquors, then the status in the several precincts thereof shall remain as it was before said election; but if the majority should be against the sale, then the sale, barter or loan of such liquors shall be unlawful in every portion of said district or city. ’ ’
The facts of these two cases are as follows': The town of New Castle, in Henry county, is a city of the sixth class. On September 1, 1905, an election was held .in that town, under the provisions of the statutes, to take the sense of the legal qualified voters whether spirituous, vinous, or malt liquors should be sold, bartered, or loaned therein. The result was, by a vote of. 66 to 65, against prohibition. On June 11, 1906, at an election duly called and held for the entire county of Henry as to whether spirituous, vinous, or malt liquors should be sold, bartered, or loaned therein, prohibition carried by a vote of 1,596 for prohibition to 499 against it. Appellee Scott was a licensed retail liquor dealer in New Castle, and applied to the town council for a renewal of his license after the last-named election. His application was refused by the trustees, and he. brought this action for a mandamus against them.
The city of Stanford is a city of the fifth class, in Lincoln county. On June 9, 1906, at an election duly called and held at Stanford, as to whether spirituous,
The- contentions of counsel who assail the validity of the statute are that it violates the Constitution in at least-three particulars: (1) That section 61 of that instrument is a guaranty of right to the municipality, the town, to control for itself, by the vote of its electors, whether or not liquors shall be sold in the town, and that the act now under investigation destroys that option- by making it subservient to the option which the county may exercise upon the question; (2) that it violates- the section of the Constitution which declares that all elections shall be free and equal; and (3) that it violates sections 59 and 60 of the Constitution, forbidding local and special legislation. There is also- an objection that the title of the act is not expressive of its context.
The first of the contentions is manifestly the most important-. The others are matters of detail that, if bad, could be remedied by appropriate legislation. But, if the proposition is true that each unit, au 1 particularly the smallest unit, is beyond the control of
In this view of the situation: Does the Constitution mean, when it provides that the voters of any county, city, town, district, or precinct shall deter
It is very earnestly ■ argued that the words “whether or not” mean “may or may not;” that any precinct may vote liquor in or vote it out. That argument would make the precinct not only the controlling unit, but the only unit in the matter. Obviously, if a precinct in a town votes “wet,” as it is called if the proposition be carried in favor of the sale of liquors, then the town is wet to every intent and purpose as a town. So is the county. And as in that event any adverse vote of the town or county, by whatever majority, would be futile to affect the result or that status created by the vote of the precinct, it would be useless to take the vote except in the precinct. As this result is destructive of the autonomy of the county, and of the city and town, expressly given it by section 61 of the Constitution, it must for that reason alone, if for no other, be rejected. On the other hand, to say that the larger territory shall
Our present Constitution is an eminently practical instrument. It deals less with abstractions, and more with actual conditions, than any previous document of the kind in this State. The old Constitution was found inadequate, not in its principles, but in practical matters affecting the public welfare. The Convention was called in the light of experience to correct deficiencies, and it did it. It was never contemplated by anybody, in or out of the Convention, that there was occasion for, or purpose to, abridge the police power of the State, that quality of sovereignty that is sometimes likened to self-protection in the individual. Nor was it ever argued that the State ought to or could take away from the Legislature that power which is the very basis of the State’s right to declare what is criminal, or otherwise hurtful to society, and to prohibit; control or punish it. No other subject had been more clearly settled upon as being within the legitimate exercise of. the police power of the State than the regulation of the sale and use of intoxicating liquors. In some oommuni
The natural status of the situation in this State, before any legislation on the subject, was that anybody had the right to sell liquors anywhere, to anybody, and at any time. The State has, unon the idea that the public peace, the public health, and the public morals demanded it, been gradually, but constantly, restricting the traffic. Leneral laws now re
There is yet another view of the subject which we must assume was in the mind of the Convention. The liquor traffic had then (in 1891) come to be regarded as one of the most serious evils of the age, if not the most sinister menace to society that was known. Every civilized country regulated it, or prohibited it. Enlightened public opinion everywhere has constantly grown in favor of greater restrictions upon it. No one was then saying that governmental control of the traffic should be relaxed in the least. Every argument pointed to a more stringent control. The main division in the controlling public thought was not upon whether there should he greater or less restriction, but as to how to put on the surer and greater restriction; whether a high license, or prohibition. The Convention was not prepared to say
A similar provision in the Constitution of Texas was construed as we in this opinion construe section 61 of this State. See Ex parte Rippy, 44 Tex. Cr. R. 72, 68 S. W. 687. Under the old statute, it was held (Cole v. Commonwealth, 101 Ky. 151, 19 Ky. Law Rep. 234, 39 S. W. 1029) that towns and cities might vote on the same day as counties, and. the vote of the former on the question controlled as to them, because there was no provision found in the statute to the contrary. The present act, to meet precisely that defect in the former, does, as to counties of a certain class, provide that towns, cities, and precincts shall not vote independently on the same day that the county votes on the subject. The effect is, and the purpose was, to regulate the time when the votes might be taken in such communities. The differentiation in favor of a vote for prohibition eithci in the larger or smaller unit is maintained in the present act in some other respects as in the old one. A number of cases before this court since the adoption of the existing Constitution have presented, in one form or another, various features of the local option question. Certain expressions have been culled from the opinions, and are cited to sustain different views concerning section 61 of the Constitution. A full and careful
In Brown v. Commonwealth, 98 Ky. 652, 34 S. W. 12, 17 Ky. Law Rep. 1216; Lafferty v Huffman, 99 Ky. 89, 18 Ky. Law Rep. 17, 35 S. W. 123, 32 L. R. A. 203, and Commonwealth v. Hardin County Court, 99 Ky. 188, 18 Ky. Law Rep. 113, 35 S. W. 275, it Was held that the local prohibition statutes enacted before the Constitution of 1891 might be repealed either by an inconsistent general law of the Legislature on the subject, or by a vote in the smaller units held within the territory under the general local option law. In Cole v. Commonwealth, 101 Ky. 151, 59 S. W. 1029, 19 Ky. Law Rep. 234, Scott county petitioned for a local option election for the whole county. Georgetown petitioned for a separate election on ihe same day. The result was the county went dry, while the city went wet. The question for decision was: Was the city entitled to a separate election on the same day, and to control the question of its own status? It was held that, under the terms of the statute, it was so entitled. In Commonwealth v. Bottoms. 57 S. W. 493, 22 Ky. Law Rep. 410 (withdrawing the former opinion delivered in the same ease, 50 S. W. 684, 20 Ky. Law Rep. 1929), and in Tousey v. Stites, 66 S.
A fair construction of all those Opinions, in the connection with section 61 of the Constitution, is that the Constitution meant to leave, and did leave to, the Legislature, the details of the ldw to be enacted to carry the provision of the Constitution into effect. In view of the changing conditions of -he future, the wisdom of the Legislature could best determine when the conditions arose as to how often and in what rotation votes in the respective localities might be taken on the subject. It wuS therefore competent for the Legislature to provide by general law for repealing or modifying the existing local laws continued in force by the Constitution, and to allow it to bé done by vote 'of such locality as the Legislature saw proper. ■The reason no subsequent election in any other unit could change the result in the given unit was the statute withheld such effect. Nor ate we now departing from anything actually decided iii dny previous case before this court. The Legislature has now for the first time enacted a law in which it does give a controlling vote to a locality — to each of the units ndmed — in the event it votes for prohibition, over other units mentioned, which may hot have voted, or may have voted pf eviously dgainst prohibition. The question is how raised ahd presented fot
At this point, we may say that the act under examination was intended to change the law as to the effect of a vote on prohibition. Under the statute -that was repealed by this act, a vote against prohibition was given the same effect as a vote in favor of it; but the present act intended to give a different effect, by allowing each unit a chance — without regard to any previous vote taken in any other unit— to adopt prohibition. So, without reference to when the vote was taken in a city or precinct, which resulted in a majority against prohibition, any other unit, either including or included by the territory just mentioned, may vote for itself on the proposition, and, if it votes in favor of it, prohibition in counties of the class to which Henry and Lincoln belong becomes effective in that territory. Therefore, although New Castle and Stanford had shortly before refused to vote prohibition, the counties in which they were
Section 59 of the Constitution prohibited the Legislature from passing special acts (subsection 27) to provide a means of taking the sense of the people of any city, town, district, precinct, or county whether they wish to authorize, regulate, or prohibit therein the sale of vinous, spirituous, or malt liquors, or alter the liquor laws. And section 60 i eads in part: “The General Assembly shall not indirectly enact any special or local act by the repeal in part of a general act, or by exempting from the operation-of a general act any city, town, district or county; but laws repealing local or special acts may be enacted.” It is argued that the Cammack bill violates these sections, in this, that it repeals a general law in part (section 2560, Ky. Stats., 1903), and enact a statute regulating the liquor traffic so as to indirectly make it apply to certain cities, and directly exclude others. The act regulates the time for holding local option elections in the several units. It differentiates between counties having cities of the fourth class or larger, and those not having cities as large as the fourth class. Is this classification repugnant to the Constitution?
It is clearly competent for the Legislature to provide by general law different times for holding the elections in the different units. No one seems to dispute that. The Legislature might rest a dis
The other particular objection to the act is that it destroys the equality of the election, in that it gives more force to a vote in favor of prohibition than it does to a vote against it. All votes have precisely the same weight in the election. No one’s vote counts for more than another’s on that occasion. After the status is created by a majority of the- votes — each vote being accorded equal potentiality in the election —the Legislature has then provided that the status •of prohibition may not be subsequently altered, except in a certain way; but that the'status of a failure to prohibit may be altered earlier, or by the action of the larger unit| This is in no sense giving one vote a different weight in the matter of the election than another’s, but is merely providing for the very condition that in our opinion was contemplated by section 61 of the Constitution. Similar provisions have been held not to infringe on the freedom and equality of elections. Gayle v. Owen County, 83 Ky. 68, 6 Ky. Law Rep. 789; Rippy v. Texas, 193 U. S. 504, 24 Sup. Ct. 516, 48 L. Ed. 767.
The title of the act is said to be insufficient because that act does not amend.section 2560, Ky. Stats., 1903, but repeals that section, and substitutes another provision for it. A statute cannot, under the Constitution, be amended in the manner formerly followed,
"Wherefore w'e conclude that the judgment in the Lincoln county case should be affirmed, and that the judgment of the Henry county case should be reversed, and the latter case is remanded for proceeding consistent with this opinion.