Brann v. Hart

97 Ky. 735 | Ky. Ct. App. | 1895

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

By an act of March 20, 1880, entitled “An act to prohibit the sale of spirituous, vinous* or malt liquors, or mixtures of either, in the seventh magisterial district of Pendleton county,” it was made unlawful for any person to sell spirituous, vinous or malt liquors, or mixtures of either, or to obtain a merchant’s coffee-house, tavern, or other license, to sell within limits of seventh magisterial district in Pendleton county.

In 1893, appellant, Brann, operating a distillery in that district applied to Pendleton County Court for a distiller’s license to sell, and due notice having been given an order was made to that' effect. But upon appeal to Pendleton Circuit Coui’t that order was set aside, leaving appellant without any license to sell. And the question on this appeal is whether the act of March 20, 1880, referred to, has been repealed, or is still in force? Another question is, however, made, that we will first dispose of; that is, whether the act is not unconstitutional and void, because relating to more than one subject?

But it seems to us the provision made therein against the sale, against issuing a license of any kind for such sale, for punishment of a person violating the first section of the act, all relate directly to the subject expressed in the title.

It is contended that the act in question is repealed by section 59 of the constitution, which forbids the General Assembly passing local or special acts concerning, among others, the subject “of taking the sense of the people of any city, town, district, precinct, or county, whether they wish to authorize, regulate or prohibit the sale of vinous, spirituous or malt liquors, or'alter the liquor laws.”

In our opinion it was not intended by that section to ipso facto repeal existing- laws, either general or local, prohibiting the sale of liquors. On the contrary, the words we have italicized show such repeal was intended to be provided for by a general law on the subject to be thereafter enacted.

Section 4205, Kentucky Statutes, authorizes licenses granted to merchants, drug-gists and distillers for the purpose of retailing- liquor upon the terms therein provided. And by section 4267, of the same chapter, title of which is “Revenue and Taxation,” all acts and parts of acts in conflict with that chapter are repealed.

But it certainly was not intended by that section to repeal any act like the one in question. For the manner in which such an existing- statute may be repealed or nullified, as well as the manner in which sale of spirituous, vinous or malt liquors may be hereafter prohibited in any city, town, county, district, or precinct, is expressly provided for in chapter 81, Kentucky Statutes, title of which is “Local Option Law,” which was intended to, and doé's, regulate the whole subject, as provided for in section 61 of the constitu-' .Cion. And as it does not appear that the act of March 20, 1880, has been repealed or nullified in the manner provided in chapter 81, it must be regarded in full force. Consequently, the county court order granting license to appellant was properly set aside.

Judgment affirmed.