Eggen v. Offutt

128 Ky. 314 | Ky. Ct. App. | 1908

Opinion of the Court by

Judge Settle

Affirming.

September 1, 1906, an election was beld in Nelson county, as a whole or unit, on the question as to whether or not spirituous, vinous-, or malt liquors should be sold, bartered, or loaned in the county. The election resulted by a small majority in favor of the sale-of such liquors. On August 31, 1907, an election was held in magisterial district No. 4 of Nelson county on the question whether or not spirituous, vinous, or malt liquors should be sold, bartered, or loaned in that district, resulting in a large majority against the sale of such liquors. It is contended by appellants that the county election was a bar to the holding of an election in the magisterial district for three years from the date of the county election. This contention was rejected both by the contest board and circuit court, the election in the district adjudged valid, and the contest dismissed. Appellants complain of the judgment of the circuit court, and ask this court for its reversal.

It is argued by counsel for appellants that when a local option election is held in the county as a whole, whether resulting for or against the sale of liquors, an-' other cannot legally be held in the county as a whole, or in any district thereof, until three years shall have elapsed. We do not think this a correct view of the law. Section 61 of the Constitution provides: “The General Assembly shall by general law provide a means whereby the sense of the people of any county, city, town, district, or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated.” The statutes containing the local option law of the Sta-te were enacted in pursuance of. the constitutional provision supra. It will be observed that the Constitution creates five divisions of the territory to be affected, for the purpose of submitting this question to a vote. These divisions or subdivisions this court has designated units, in respect to which it is said in Trustees of New Castle v. Scott, 125 Ky. 545, 101 S. W. 944, 30 Ky. Law Rep. 895: “Does the Constitution mean, when it provides that the voters of any county, city, town, district, or precinct shall determine whether or not intoxicating liquors shall be. sold therein, that one unit shall dominate the others ? And, if so, which one? It is certain that a county cannot be a dominant unit ever, if a town or city, or any precinct therein, may decide the same question for itself, and contrary to the vote of the county as a whole. Nor can a town or precinct be a controlling unit, if the vote of the county to the contrary can overthrow the result in the smaller territory. Constitutions, like other instruments, must be given such construction as will give some meaning, if possible, and a consistent meaning, to every word employed. We must, therefore, search'for that meaning that will not annul the privilege accorded to precincts in this matter, nor emasculate the rights given to the counties, cities, and towns. * * * There must have been some sense in which the words are used in the section of the Constitution under examination that will admit of all of them standing for something. There must be some condition under which it is pos • sible to give effect to every unit made by that section, so that there might be a time when any one of them could dominate all others, should their views be in conflict. * * # Our construction is, in view of these conditions and the language used, that the Constitution meant that the local units named should control within their own territory the question of prohibition, and that each should have the privilege of saying conclusively that prohibition.should prevail, but not conclusively that it should not. This construction harmonizes the section so as to allow all of it to stand, and to give equal force and power to each unit named. If a precinct votes that prohibition shall prevail within its territory, it is not competent for any other unit to gainsay the matter. If, however, the precinct votes against prohibition, that leaves the question, so far as it is concerned, as it was before any vote was ever taken on it. But if the town-or city which includes the precinct in question subsequently votes in favor of prohibition, the whole town or city thereby becomes dry. Or, if the county subsequently votes dry, the same result as to the county is attained. But if the county or town vote wet, and the precinct has previously voted dry, the precinct controls for itself. Thus each unit for itself has the option of putting the prohibition law into effect within its territory, and no larger or smaller unit can prevent it.”

The local option law of this State, except the last amendment, known as the “Gammaek Act,” is contained in chapter 81, arts. 1, 2 Ky. St. (Carroll’s Ed.) 1903. Sections 2554 to 2568, inclusive, prescribe the manner of putting the law into operation. Section 2560 declared the effect of the vote in the territory in which the election was held. The act of March 14, 1906 (Cammaek Law, Acts 1906, p. 86, c. 21), is an amendment to section 2560 of the older statute, and its constitutionality, as well as its effect upon the section it was intended to amend, was under consideration in the case supra. After disposing of the objections urged to the constitutionality of the act in question, the opinion, in respect to its meaning and effect, declares: “At this point we may say that the act under examination was intended to change the law as to the effect of a vote on prohibition. Under the statute that was repealed by this act a vote against prohibition was given the same effect as a vote in favor of it; but the present act intended to give a different effect, by allowing each unit — without regard -to any previous vote taken in any other unit — to adopt prohibition. So, without reference to when the vote was taken in a city-or precinct, which resulted in a majority against- prohibition, any other unit, either, including or included by the territory just mentioned, may vote for itself on the proposition, and if it votes in favor of it, prohibition in counties of the class to which Henry and Lincoln belong becomes effective in that territory.”

If, as above declared, each unit can, by a majority vote therefor, prohibit the sale, barter, or loan of spirituous, vinous, or malt liquors within its territory, and no larger or smaller unit can prevent it, it necessarily follows that magisterial district No. 4 in Nelson county, being one of these units, had a, legal right, by the election held therein subsequently to that held in the county as a whole, to put into effect such prohibition within its territory, and Nelson' county, the larger unit cannot prevent it. When the county as a whole voted against prohibition, that left the question, so far as the county was concerned, as it was before any vote was taken on it. • Such we understand to be the meaning of the act of 1906 and of the opinion in Trustees of New Castle v. Scott, supra. The county having failed to adopt prohibition, such failure left any other unit in the county free to adopt it for itself. If this were not true, the county would' not only dominate the other units for three years, by prevent-' ing the holding of a local option election during that time, but, by calling another election for the county at the end of the three years and again^carrying it “wet,” it could dominate the other units mentioned in the Constitution for another three years, and so on from the end of one three years to another, and thereby destroy the individuality of the other units, and completely obstruct the legislative intent to encourage prohibition in subdivisions of the county where it is rejected by the county as a whole.

It is true, section 2563, Ky. St. 1903, provides: “The election or elections herein provided for shall not be held for any county, town, district or precinct, oftener than once every three years.” But we held in the ease supra that this statutory inhibition only applies to a second election within the time indicated in the same or “identical territory.” Manifestly it cannot be claimed that an election held in magisterial district No. 4 as a unit was an election in or for the county as a unit or whole, such as was the election for the county held in 1906. Therefore the territory in which the elections occurred was not the same or “identical territory.” If the election of 1906 for the county, in which the county as a whole was the unit, had gone dry, instead of wet, the election held in district No. 4, the smaller unit, in 1907, would have been invalid; but ihasmuch as the county election did not so result, and the district election resulted in favor of prohibition, and it was not .held in the identical territory in which, the election for the county was held, it had the effect to put prohibition in forcé in district No. 4.

It is not our province to pass upon any question of policy involved in the enactment or enforcement the statute under consideration. Such questions must. be left to -legislative discretion and determination. Our duty goes no further than to fairly interpret its meaning in the light of the language employed ,and to pass upon the objections urged to its constitutionality. As already indicated, the conclusions herein expressed merely follow, or logically result from, those previously announced by this.court in the following cases: Trustees of New Castle v. Scott, 125 Ky. 545, 101 S. W. 949, 30 Ky. Law Rep. 894, O’Neal v. Minary, 125 Ky. 571, 101 S. W. 951, 30 Ky. Law Rep. 888; Washington v. Giddens, 103 S. W. 321, 31 Ky. Law Rep., 647; DeHaven v. Bowner, 125 Ky. 800, 102 S. W. 306, 31 Ky. Law Rep. 416; Yates, County Judge v. Nunnelly, 102 S. W. 202, 125 Ky. 664, 30 Ky. Law Rep. 984.

Wherefore the judgment is affirmed: