Commonwealth v. Green, 98 Ky. 21

Commonwealth v. Green

98 Ky. 21 | Ky. Ct. App. | 1895

JUDGE HAZELRIGG

delivered the opinion oe the court.

This is a prosecution against the appellee for an alleged violation of what is popularly called the local option law, and the indictment having' been held bad on demurrer, the State has appealed.

(1). The indictment charges that the election was ordered upon the petition of “25 per cent of the legal voters of Stanford,” when the statute (Kentucky Statutes, section 2554), requires 25 per cent, of the votes cast, “at the last city election.”

(2). It charges that the election was ordered “at the July term, 1894, which was a regular term of said court after the judge had received the petition,” when the statute requires the order to be made at the next regular term” of court after receiving the petition.

*23This court can only know judicially that the legislature adopted the statute in question, and can not know, in the absence of proper averment, that the election was ordered upon the petition of a number of legal voters equal to 25 per cent, of the votes cast at the last city election in Stanford, or that at the nest regular term of his court after receiving such petition, the county judge made an order for such election.

It is also contended on the authority of the case of King &c. v. Commonwealth, 86 Ky., 436, that as the order was for the election in the city, directed to the sheriff and not to the city authorities, the election thus held was invalid.

In the King case such was the construction of the old statute on this subject.

The statute then required the order of the county judge to be addressed “to the sheriff or other officer, whose duty it may be to hold the election,” and it was held when a vote was to be taken in a town, “the order to hold the election should be addressed to the town authorities and the election held under their supervision and not under the supervision of the sheriff.”

The present statute (section 2554, Kentucky Statutes), requires the order of the judge of the county court to be addressed to “the sheriff, or other officer of said county, who may be appointed to hold said election,” and further (section 2555): “All elections provided for in this act shall be held by such officers as would be qualified to hold elections for county officers, and they shall be selected in the same way,, and all elections provided for herein shall be held in accordance with the provisions of the general election laws of the State, etc.”

It would seem, therefore, that the order was properly addressed to the sheriff as alleged in the indictment and that *24the election held under his supervision was not on that account invalid. But for the defects indicated in the indictment the demurrer was properly sustained, and the judgment is affirmed.