127 Ky. 13 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
The Fifth magisterial district of Boyd county is composed of seven election precincts, five of which are within the corporate limits of the city of Ashland and embrace one-half of that city. Ashland is a city of the fourth class. ■ The appellees filed a written petition with the' county judge of Boyd county -on the 25th day of February, and during the regular term of the Boyd county court, for the purpose of obtaining an order for an election in the Fifth magisterial district to determine whether or not spirituous, vinous, or malt liquors should be sold, bartered or loaned therein. This petition was signed by a number or voters equal to 25 per cent, of the votes cast in each of the said precincts at the preceding congressional election. At the next regular term of the Boyd county court, the regular judge was sick, and A. W. Starlin, one of the magistrates of said county, convened court and adjourned the hearing of the said petition until the following Thursday, at which time the regular judge was present and heard the application for said election. When the application came on for hearing, ten persons who had signed the petition came into court and filed a written statement requesting the
The first question presented for our consideration is: Has a person who has signed a petition for a
The next question presented is whether a petition for a local option election in a 'magisterial district shall be signed by a number of voters in each precinct equal to 25 per cent, of the votes cast in each precinct, or by 25 per cent, of the voters of the entire district. The language of the statute (Ky. St. 1903, section 2554) is as follows: “Upon application by written petition, signed by a number of legal voters in each precinct of the territory to be affected, e jual to twenty-five per cent, of the votes cast in each of said precincts at the last preceding general election, and when for town or city elections, the number of votes cast at the last city or town election, ir shall be the duty of the judge of the county court in such county,” etc. In interpreting this section, this court, in Nall v. Tinsley, 107 Ky. 452, 54 S. W. 190, 21 Ky. Law Rep. 1167, said: “A careful reading of the sec
The next question involved is: What is meant by “the next preceding general election?” In view of the fact that nowhere in the Constitution or statutes is any attempt made to define a general election, the solution of the question is not altogether free from doubt. As there is usually greater interest, however, ini local contests, and consequently a larger vote cast in elections for State or county officers, than in congressional elections, and the vote cast in the former a fairer test of the strength of the petition, we are of the opinion that the Legislature meant the next preceding general election at which officers for the
For tbe reason stated, judgment is reversed, and canse remanded, with directions to dismiss the petition.
Petition for rehearing by appellees overruled.