Commonwealth v. Redman

121 Ky. 158 | Ky. Ct. App. | 1905

Opinion by

Chief Justice Hobson

Reversing.

Appellee, Redman, on March 31, 1905, was granted a license by the Jefferson County Court to keep a tavern at Taylor Boulevard and New Pleasant Ridge Roads, in Jefferson county, with the privilege of selling spirituous, vinous and malt liquors. On April 25th the county attorney served notice on Redman that at the next term of court, commencing not less than five days after the service of the notice, lie would move the court to revoke the license, on the ground that Redman was not properly equipped to keep a tavern as required by law and that he had illegally obtained the license. The motion was entered, the parties appeared, and considerable testimony was heard on both sides. The county court upon the evidence revoked the license, and the defendant appealed to the circuit court. In that court the judgment of the county court was reversed, and the Commonwealth has appealed to this court.

The proceedings were under the following provisions of the statutes: "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 courthouse, 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.” (Ky. Stats. 1903, sec. 4203.)

“License to keep a tavern outside of an incorporated city or town shall be granted only to persons who are prepared with houses, bedding, stabling' and provender sufficient to accommodate the public, and shall not be granted to any one unless the keep-ing of a tavern at the place proposed is necessary for the accommodation of the public, nor until the' applicant shall take an oath, in open court, that he in good faith intends to keep a tavern for the accommodation of the public.” (Ky. Stats. 1903, sec. 4206.)

“Any tavern-keeper who shall violate the provisions of his bond, of any tavern-keeper, merchant, distiller or druggist who shall violate any provision of this article, shall forfeit his license; and when the county attorney shall have reasonable grounds to believe either upon his own knowledge or from the oath of two‘credible witnesses of such violation, he shall notify the alleged offender to appear before the next term of the county court, commencing not later than five days after the services of the notice to show cause why his license should not be can-celled. On the trial of the case, the court shall enter an order cancelling the license or acquit the defendant, as the proof may authorize.” (Ky. Stats. 1903, sec. 4208.)

We deem it necessary to consider only one of the questions discussed by counsel, and that is the question of notice. It will be observed that the statute requires that license shall not be granted until ten days’ notice shall be given by posting a written or printed notice at the door of the courthouse and at least 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 purpose of the statutory provision is that the license shall not be granted in any neighborhood contrary to the wishes of the majority of the legal voters, and to give them an opportunity to protest against the granting of the license the ten days’ notice is required to be given. The notice lies at the base of the proceeding. If the notice was not given, the county court was without authority to grant the license, and, if it did grant the license, it had authority to revoke it when it was shown that the proper notice had not been given. Otherwise the applicant could defeat the purpose of the statute, and, when he had once gotten the license without notice, could continue to sell contrary to the wishes of the majority of the legal voters of the neighborhood, although by failing to give the proper notice he had prevented them from protesting.

On the question of notice, the proof for the Commonwealth by a number of citizens of the neighborhood was that they were opposed to the granting of a license to sell, liquor at that point, and had defeated other applications; that they had understood that Redman was going to apply for license, and were looking out for the notices that they might oppose the application, but saw none, and had no notice of the application until the license was granted. On the other hand, Redman testified that he posted four notices ten days before the application at public places in the neighborhood. He said that he hung one on a tack on the front of hi,s lionse, and also put up one with one tack on a tree on the opposite side of the road; that he' put up two others about 300 or 400 yards away on telegraph poles, one north and the other south of the house. These last two notices seem to have been put up in the same way, and they were shown to have remained up for some time; but no witness in the case ever saw afterwards the notice that was hung on a tack on the front of the house, or the notice which was put up with one tack on the tree on the side of the road. The proof by Redman also shows that he went out after dark and put up the notices. His conduct shows that he understood that his application would be resisted, and that he was trying- to put up notices that would not give notice. In order to comply with the statute the notice must be substantially posted; that is, it must be posted as other notices of like character are usually posted. It must be tacked up securely. It must be posted in good faith, and at four public places in the neighborhood. In the case at bar the posting of the notices was a sham, im tended to defeat the purposes of the statute, and the county court properly revoked the license.

Judgment reversed and cause remanded for a judgment as herein indicated.