Commonwealth v. Petri, 122 Ky. 20

Commonwealth v. Petri

122 Ky. 20

Ky. Ct. App.

1906

Check Treatment

OPINION by

Judge Barker

— Reversing.

In 1872 the Gfeneral Assembly of tibe Common^ *22wеalth, of Kentucky passed an. act entitled “An Act to revise, amend and reduce into one the acts pertaining to the District of Highlands, in Campbell county” (Acts, 1871-72, Vol. 2, p. 493, c. 976). By this act it is provided “that the district heretofore known as the District of Highlands, in the county of Campbell, is hereby continued as a body politic and corporate-, for the purposes hereinafter -mentioned, ” etc. This corporation, which may be denominated a taxing district, has many of the powers and duties of a municipality. Its government is invested in a board of seven trustees, who are empowered to select corporate officers-, appoint policemen and remove them at pleasure, pass by-laws, rules, and regulations for the good government and police of the district as théy may see proper, not inconsistent' with the Constitution and laws of the State., and may provide for their observance by adequate penalties, which may be enforced before any justice of the peace for the district. Two justices of the peace and one constable are to he elected in the district by the legal resident voters thereof. The district constitutes an election precinct and a separate school district, and the board of trustees are authorized to levy taxes for schools and other corporate purposes, to build, maintain and operate public roads, with the power of eminent dоmain. By section 11 of this act (page 496) it is provided: “In said district, no person without license from said board (of trustees), except the taverns now existing on the Campbell turnpike road (the Alexandria road), may set up or engage in the business of rеtailing or making intoxicating liquors, and the said hoard are empowered to declare and prosecute as á nuisance before a justice of the peace- of said district, any estafo-*23lishment or business that compromises or imperils the health, comfort, or security of the district, and on tire offense being proven, it shall'be the duty of said justice to impose a fine of not less than ten ($10) nor more than fifty dollars ($50) and costs, for each offense. All fines thus levied, when collected, are to be paid into the State treasury.”

The appellant, Dan Petri, applied to the County Court of Campbell county for a license to retail liquor within the District of Highlands under the provision of section 4203 of the Kentucky Statutes of 1903, whiсh is as follows: “All licenses mentioned in this article except licenses to sell by retail spirituous, vinous or malt liquors, shall be granted by the county clerk; and license to sell by retail spirituous, vinous or malt liquors shall be granted by the County Court; but the County Court shall not grant a license to sell spirituous, vinous or malt liquors until ten days’ notice shall be given by posting a written or printed notice at the door of the court-house, and at least at four public places in the neighborhood where the liquor is to be sold; and if the majority of the legal voters in the neighborhood shall protest against the application it shall be refused. The County Court in each instance shall determine what constitutes the neighborhood. Nor shall such license be granted to any person of bad character, or who does not keep an orderly, law-abiding house.” The trustees of the di&-trict protested against the granting of the license upon the ground that the applicant had not kept theretofore an оrderly house. The county judge, deeming ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the consent of the trustees of the district required by section 11 of the special act of incorporation a condition precedent to the granting of the *24license by him under section 4203 of the Kentuсky Statutes, refused to grant the license, declining to pass upon the question of whether or not the applicant had theretofore kept an orderly house. From this order an appeal wtas taken to the Campbell Circuit Court, and uрon trial there it was held that the provisions of section 11 of the act ineorporating the District of Highlands were repealed by section 4203 above quoted, and the case was reversed, directingi the county judge to try the question of granting the license on its merits. From this judgment the trustees, using the name of the Commonwealth., have appealed.

In City of Covington v. District of Highlands of Campbell county, 113 Ky., 612; 24 R. 433; 68 S. W., 669, the question was. presented Whether or not the district had the power to tax the water company of Covington, which is situated therein. There the autonomy of the district was assailed on the ground that, not being a municipal corporation which could be classified under the Constitution, and having been created by special act оf the- General Assembly, the law creating it was repealed by the Constitution. This was the one question presented, and it is most elaborately discussed in the opinion written for the court by Judge O’Rear, in which it is pointed out that, while the district was created by sрecial act of the Legislature, and while it is true that the Legislature is prohibited by the present Constitution from passing a special act incorporating any particular locality into a town or municipality, it by no means follows that acts for the purpose passed prior to the adoption of the present Constitution wiere repealed by that, instrument ' It would be a work of supererogation to *25repeat the reasoning of the court in- that case. It is sufficient to say that the opinion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍maintains and upholds the autonomy of the district as a quasi municipal corporation.

It is true that in the case cited the question as to whether or not section 11 of the special act was repealed by seсtion 4203 of the Kentucky Statutes was not presented, and, consequently, not passed upon. Therefore, it is necessary for us to dispose of it here. There is no necessary conflict between section 4203 and the provision in the speсial act regarding the issuance of retail liquor licenses. The general law applies where the subject matter is not regulated by a different statute. In all the municipal corporations of the State there exists the exclusive right to grаnt retail liquor licenses. Within the corporate limits of these the county clerk merely collects the license tax. The right to grant the license is conferred upon the municipality. In the case of Schwearman v. Commonwealth, 99 Ky., 296; 18 R., 585; 38 S. W., 146, it is said: “But exclusive authority to. grant licenses to sell by retail liquor in an incorporated city or town is generally vested in the municipal government, and the exercise of such license then is not at all dependent upon an order of the county court. On the contrary, express provision is made by statute in such cases for collection by the clerk, independent of the county court, from .the person licensed, the State tax prescribed in addition to the tax imposed for the benefit and collected by an officer of the city or town. The particular condition in which it is provided the county court shall have exclusive jurisdiction to grant licenses to sell by retail liquor plainly applies to the •country, or in the languagе of the statute, ‘a neigh-*26borh'ood,’ and not to an incorporated city or town, when authority to grant or withhold coffee house, or what is commonly understood as ‘saloon license,’ is conferred upon the municipal officer or officers, thereof” In Commonwealth v. Helback, 101 Ky., 167; 19 Ky. Law Rep., 278; 40 S. W., 245, the court stated the rule under consideration as follows: “To obtain the license to retail from the county court in towns having the authority to -grant retail license, it is not necessary to make thе application at a regular term of the county court; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍but it may be made and granted at a called term. Not so where the licenses are granted to parties outside the towns having an authority to grant license. Then the application must be made after notice at a regular term of the county court.”

Special statutes are not repealed by general laws, unless the repugnancy between them, is such that they both cannot operate within the same sphere. In the case of O’Mahoney v. Bullock, 97 K., 774; 17 Ky. Law Rep., 523; 31 S. W., 878, it is said: “While the framers of the Constitution evinced their hostility so to speak, toward local and special legislation, and authorized the passage only of general laws, we do not understand that the general rule of construction, by winch one act may be construed to repeal another, has in any wise been changed. Among these well-settled rules are these: That a general statute will not, by mere implication, repeal a former one which is special or local; that, moreover, there must be such a repug-nancy between the provisions of the acts that they cannot stand together or be consistently reconciled. rfVhis rule applies- when bоth statutes are of a general nature, and the presumption against repeal is strengthened when the one act is local or special and *27the other general.’’ In the case of Murphy v. City of Louisville, 114 Ky., 765; 24 Ky. Law Rep., 1574; 71 S. W., 934, the question of repeal by implication of a local by a general act was most thoroughly considered. The court, through Judge Paynter, said: “In construing an act, the important thing is the ascertainment of the intention of the Legislature. To do this, We must consider the title of the act, its context, and the purpose of its enactment. It is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍well to bear in mind that the universal rule is that repeals by implication are not favored, and, further, that when one act is local, in its nature or application, or relates to рarticular places, or persons, and the. other a general one, they will both be upheld, and considered as forming one consistent whole. It is said in Cope v. Cope, 137 U. S., 686; 11 Sup. Ct., 223; 34 L. Ed., 832, that ‘nothing is better settled than that repeals (and the same may be said of annulments) by implication are not favored by the courts, and that no statute will be construed as repealing a prior one unless so clearly repugnant thereto as to admit of no other reasonable construction.’ The same xmle was recognized in McChord v. L. & N., 183 U. S., 483; 22 Sup. Ct., 165; 46 L. Ed., 289.’’

The necessity for conferring upon the district the power of assessing property and levying and collecting taxes, tire power to pass and enforce by-laws for the safety and good government оf its inhabitants, and to do and perform other important public functions usually conferred upon municipal corporations, a fortiori existed for conferring upon it the power to regulate and control the sale of liquor by retail within its bоrders. This proposition is so plain that it needs only to be stated. This right, which seems to be intended as a mere veto power, is plainly grant*28ed in tlie act creating the district. The act, although special in its nature, as we have seen, was not repealed by the provisions of the Constitution, and if the principle against repeal by implication, announced and enforced in Murphy v. City of Louisville, is to he upheld, then the power to regulate the sale of liquor within the district is not repealed by section 4203, Ky. Stats., 1903.

The position of appellant, that section 11 is void because it seems to discriminate in favor of and to confer special rights upon the owners of the taverns on the Campbell turnpike road, is untenable. This exception was placed in the act merely to protect the i iglits of the owners of those taverns which were being ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍operated under license at the time the act was passed. The object was. to prevent a forfeiture of the licenses then in existence. The exception could only operate until the annual license expired, and it has had no force or effect since the expiration of one year from the date of the approval of the act in 1872.

The judgment is reversed, for proceedings consistent with this opinion.