137 Ky. 224 | Ky. Ct. App. | 1910
Opinion of the Court by
— Reversing.
Appellee, Burk’s Springs Distilling Company, was indicted by the grand jury of Marion county for violating section 2558a, Ky. St. (Russell’s St. sec. 3646), wbicb is a part of the local option law. The trial court sustained a demurrer to, and dismissed, the indictment. To review the propriety of this action, the commonwealth appeals.
“Be it enacted by the General Assembly of the commonwealth of Kentucky:
“Section 1. That section 1 of an act to regulate the sale of intoxicating liquors by wholesale in this commonwealth, which was approved March 22, 1904, and amended by an act approved March 21, 1906, be, and the same is hereby amended, by adding after the word, manufacture, in the fifth line of said act as printed in the act of 1906, the following words, to-wit: ‘To a wholesale dealer or a licensed retail dealer; ’ so that said act as amended shall read as follows :
“Section 1. It shall be unlawful to sell by wholesale any spirituous, vinous, malt or other intoxicating liquors, regardless of the name by which it is called, (except) manufacturers selling liquors of their own make, at the place of manufacture to a wholesale dealer or a licensed retail dealer in any county, district, precinct, town or city where the sale of such liquors has been prohibited by special act of the General Assembly or by vote of the people under the local option act. Any person violating this act shall be deemed guilty of violating the local option law and shall be subject to a trial and punished according to the provisions of same and its amendments.” Sess. Acts 1908, p. 55.
This act does not violate section 51 of the Constitution, which provides: “No law enacted by the General Assembly shall relate to more than one
It is next insisted that the act in question is inoperative in local option territory where the law was different when the vote was taken. When the vote was taken in Marion county, the law was as follows: “The provisions of this act shall not apply-to any manufacturer or wholesale dealer who, in good faith and in the usual course of trade, sells by the wholesale in quantities of not less than five gallons, delivered at one time, and not to be drunk on the premises. ’ ’ By the act of March 22, 1904, wholesalers were not included within the exceptions men
The argument is made that, under section 61 of the Constitution, the people of a particular community are given the right to determine whether or not spirituous, vinous, or malt liquors shall be sold therein; that, having voted in favor of local option, when a particular law was in force, the Legislature has no right, so far as that community is concerned, to amend or change the law. The law in question differs materially from the law in force at the time the vote was taken in Marion county. Appellees, therefore, urge that it is inapplicable to them. It will be observed, however, that section 61 of the Constitution simply provides for submitting io the people of any county, city, town, district, or precinct the question whether or not spirituous, vinous, or malt liquors shall be sold. It does not deny to the Legislature, where the vote is in favor of local option, the right to determine when and under what circumstances sales may be made. Thus in the case of Crigler, etc., v. Commonwealth, 120 Ky. 512, 87 S. W. 276, 27 Ky. Law Rep. 918, this court held that notwithstanding the local prohibition law, commonly called the “Five Counties’ Act,” approved April 4, 1884 (Acts 1883-84, c. 598), forbade the sale of liquor by retail in Laurel county, the
In the case of Tabor v. Lander and Haynes v. Commonwealth, 94 Ky. 237, 21 S. W. 1056, this court held that,' where the general local option law had been voted into operation in a civil district of which a city formed a part, an amendment to the city charter conferring for the first time authority on the city council to license taverns and coffee houses, with the privilege of retailing liquors in the city, repealed the local option law so far as the city was concerned. In discussing the question the court said: i£In the district a vote was taken under the provisions of the law in August, 1884, and again in 1890, resulting each time «against the sale. In April, 1888, an amendment to the charter of the city of Hawesville was adopted by the Legislature, conferring for the first time authority on the city council to license taverns and coffee houses with the privilege of retailing liquors in the city, and it is now insisted that this act repealed the operation of the local option law then in force, so far as the city was concerned. In the case of Gifford v. Commonwealth, 2 Ky. Law Rep. 437, it was held by this court that a section in the charter of the town of Falmouth, passed by the Legislature in 1878, granting the council of that town the power to license'
In 19 Am. & Eng. Ency. of Law, p. 513, the rule is thus stated:
“Where the provisions of a local option law have been adopted in certain territory, the subsequent legislative enactment of a law applicable to • such territory which is inconsistent with the local option law operates to repeal the latter.” So, too, it has been held that persons who are excepted from the prohibitory features of the local option law under certain conditions and restrictions do not require any such vested right to sell under the conditions prescribed by the law in force at the time of its adoption as to preclude the Legislature from thereafter imposing additional conditions to be operative in territory which had previously adopted the law. Snearley v. State, 40 Tex. Cr. R. 507, 52 S. W. 547, 53 S. W. 696. From the above authorities we conclude that the vote of the people in a particular community in favor of local option under the law then in force will not operate to deprive the Legislature of the right at any time to alter, amend, change, or repeal the law. That being the case, the act of 1908 was in force in the territory where appellee lived, and it is liable to punishment for any violation thereof.
Lastly, it is insisted by appellee that the act in question violates the fourteenth amendment to the Constitution of the United States, in that it denies to it the equal protection of the law. In this connection, it is contended that the act discriminates between manufacturers in local option districts and those not in local option districts, in that the former
For the reasons indicated, we are of opinon that the act of 1908 is not only valid, but is operative in Marion county. That being the case, it follows that the trial court erred in sustaining appellees’ demurrer to the indictment.
Judgment reversed and cause remanded, with directions to overrule the demurrer.