126 Ky. 8 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
In. February, 1907, tbe commonwealth, ’s attorney for tbe ninth judicial district filed information under section 1141 of the Kentucky Statutes of 1903 against appellees., charging them with a violation of the local option law, alleged to be in force in Cloverport magisterial district of Breckinridge county. The prosecutions being heard upon an agreed state of facts, judgment was rendered dismissing it upon the ground that it was prematurely instituted. The agreed facts are as follows: Previous to May, 1906, the sale of in-
The only question to be decided is, did the license issued by the proper authorities to appellees protect them? It is contended for appellant that the decision of the circuit court holding the election void subjected appellees thereafter to the penalty denounced by law for selling liquor in local option precincts, although the judgment was superseded pending an appeal to this court, and, further, that without reference to the judgment of the circuit court the right to sell liquor in these precincts, although a majority of the voters favored the sale, did not become effective, because the certificate of the result of the election was not spread on the order book of the county court. Appellees insist that when the license was issued the authorities had the right to grant it, as there was at that time no law in force in the territory prohibiting the issual of licenses, nor was any proceeding pending to contest the election under which the right to grant license was authorized, and that the appeal and supersedeas suspended the judgment of the circuit court declaring the election void. If the authorities had the leg’al right to issue license, the judgment of the circuit court annulling the election would not, pending the appeal, affect the rights of licensees. The license was issued for the period of one year, but the right to operate under it was subject to be taken away at any time by final adjudication that the election was void. If the election during the life of the license had been set aside by the judgment of this court, or the judgment of an inferior tribunal or court from which no appeal was prosecuted, the decision would relate back to and restore the status that existed immediately preceding the elec
A more serious question is presented in the argu
We therefore conclude that when an election is held in territory in which, the sale of liquor is prohibited, and a majority of the votes are in favor of its sale, the result does not become effective until the certificate of election is recorded, and that, if the election is contested by persons opposing the sale in the manner provided in section 2566, the certificate cannot be recorded until the contest is disposed o«f. nor can any person sell within the territory until this is done. It results, from these views, that the judgment of the lower court must be reversed; and it is so ordered.