Diener v. Lane

165 Ky. 396 | Ky. Ct. App. | 1915

Opinion op the Court by

Judge Settle

Affirming’.

This appeal brings to us for review a judgment of tbe Mason Circuit Court sustaining, as did that of the contest board, tbe validity of a local option election held in Mason County, September 28, 1914, under tbe county unit law. There were, as certified by tbe county board of election commissioners and found by tbe contest board and circuit court, 2,159 votes cast in favor of and 2,490 votes against tbe sale, barter or loan of spirituous, vinous or malt liquors in Mason County, making tbe majority against tbe sale, barter or loan of such liquors 331 votes.

Tbe validity of tbe election is assailed by appellants on tbe ground tbat tbe county unit law is unconstitutional, and tbat tbe act of 1914 (Acts 1914, page 49},, amendatory thereof, ■ is in conflict with and operated as a repeal of tbe county unit law. In tbe very recent case of Young, etc. v. Trimble, etc., 164 Ky., 177, these two questions were considered by the whole court and decided adversely to tbe contention of tbe appellants here. As tbe opinion in tbat case must control our decision in this one, it is deemed unnecessary to reiterate the reasons set forth in the opinion for the conclusion therein reached. ' ■ '

In connection with the foregoing contention of the appellants, it is incidentally stated in the brief of their counsel that the county unit law is also violative of the Constitution of the United States and of the proyisions of the interstate commerce clause thereof and the laws of Congress made pursuant thereto; but it is evident that counsel are not serious in the latter contention, as there is no attempt to support it by argument or authority, nor do we suppose any reason can be presented for sustaining it.

It is a further contention of the appellants that the county judge erred to their prejudice in overruling their motion to require appellees to set out the postoffice .address or voting precinct of each of the petitioners for the holding of the election. It is doubtful whether"this .matter was made a ground of contest on the hearing before the contest board. “The notice shall state the grounds of the contest, and none other shall afterwards be heard.” Acts 1891-92-93, page 151. Being in doubt ■ whether the notice of contest specifically gives as a ground thereof the overruling of their motion to require the postoffice addresses or voting precincts of the petitioners to be set out, we deem it proper to say that the statute does not require that the petition or petitions for the election shall state the postoffice address or voting precincts of the petitioners (Section 2554, Act of March 13, 1914), and their failure to give them in this instance resulted in no harm to appellants, as the petitions laid over from one term of the county court to another, thereby giving appellants a month in which to investigate and ascertain whether the petitions as a whole contained the' names of as many as twenty-five per cent of the legal voters residing in Mason County, as required by Section 2554 of the statute.

Appellant’s final contention is that the question submitted to the voters and printed on the ballot “was confusing and misleading, in that it did not submit to the voters the actual question at issue; and emphasized by distinct type the error of which appellants complain.” The form of the question submitted to the voters was: “Are you in favor of the sale, barter or loan of spirituous, vinous or malt liquors in Mason , County, Kentucky, .and that the provisions, of the local 'option law and its prohibition' shall apply to druggists also?” It will be observed that the words “Mason County, Kentucky,” were printed in capital letters. It cannot be claimed that the question in the form submitted to the voters of Mason County did not conform to the requirements of the statute, therefore, no reason is perceived for holding that it was in any way misleading. The facts that previous to the election intoxicating liquors could, be legally sold nowhere in Mason Cqunty except within the city of Maysville, gave the opponents-of the sale of liquor an opportunity to argue to the voters that unless they voted against the proposition, liquor’ might be sold in the county elsewhere than in the city of' Maysville, and that the words “Mason County, Kentucky,” were printed in distinguishing type to give emphasis to this argument, cannot affect the validity of the election. The only legitimate inquiry is, was the question submitted to the voters in the form required by the statute? As this question must be given an affirmative answer, it necessarily follows that the attack upon the validity of the election on the ground indicated cannot be sustained.

Judgment affirmed.