Hodges v. Metcalfe County Court

116 Ky. 524 | Ky. Ct. App. | 1903

OdlOTON OF THE COURT BY

CHIEF JUSTICE BURNAM

Reversing

At the January term of-the Metcalfe County Court, 1903, the appellant applied for a license to retail liquor in the county by the quart, and testified and showed by the testimony of other witnesses -that he had given the notice required by section 4203 of the Kentucky Statutes of 1899. ■No objection was made to the application, and there was no evidence that he was a person of bad character, or that he would not keep an orderly or law-abiding house. The county judge, on this showing, refused the license, and, his motion ,for a new trial having been overruled, appellant prosecuted an appeal on a bill of exceptions to the Metcalfe Circuit Court. Upon the trial of the appeal in that court, it was found that appellant had complied with all of the statutory provisions, and a judgment was entered reversing the judgment of the county court, and remanding the proceeding with direction -“to grant appellant a new trial, consistent with the judgment and according to law.” The appellant objected to so much of this judgment as directed the county court to grant a new trial, and appeals to this court, and insists that the circuit judge should have remanded the cause, with directions to issue the license.

The duty of granting licenses to sell liquor by retail is imposed by section 4203 of the Kentucky. Statutes of 1899 upon the county judge; and it provides that it shall not be granted, until ten days’ notice shall' have beeh given of the application, and, if a majority of the legal voters of the neighborhood protest against the granting of the license, it should be refused. It also provides that no license shall be granted to a person of bad character, or who does not keep an orderly and law-abiding house. Ini numerous decisions of this court, it has been held that, where there is a conflict in the testimony, the county judge has a large discretion as to granting licenses of this character, and that his action will not be interfered with unless manifestly erroneous. But we have here a case in which the applicant has complied with .all the provisions of the statute, and there is no objection, so far as the record shows, from any one of the legal voters in the neighborhood in which the license is to be exercised. Nor is there any proof that the applicant is a person of bad character, or that he will not keep an orderly and law-abiding house. The discretion of the county judge is not an arbitrary one in such cases, and must not be the result of mere caprice or prejudice, either against the applicant, or the business in which he proposes to engage. Under the showing made in this case, we are of the opinion that it was the plain duty of the county judge to have granted appellant’s application.

Where an appeal .is taken to the circuit court from a judgment of the county court refusing the application, the circuit court must hear the case, not de novo, but on a bill of exceptions. See Thompson v. Koch, 98 Ky., 400, 17 R., 941, 33 S. W., 96; Hensley v. Metcalfe County Court, 25 R., 204, 74 S. W., 1054; Merideth v. Commonwealth, 25 R., 455, 76 S. W., 8. The circuit judge did not err in refusing to hear the testimony not contained in the bill of exceptions, as in that event a different state of facts might have been shown in the circuit court from what was shown on the original hearing. The circuit judge also properly reversed the judgment of the county court, but it erred in remanding the case for a new trial. Appellant should not again be required to incur the trouble and expense of another trial in the county court, in which a different staté of fact might be shown to exist, and a. different conclusion authorized. The case should have been remanded with directions to the county court to grant appellant’s application, as required by the statute.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.