127 Ky. 39 | Ky. Ct. App. | 1907
Opinion op tke Court by
Reversing '.
In January, 1907, appellant made application to .the board of council of Clay City, a city of the fifth class, for license to sell spirituous, vinous, and malt liquors by retail at his place of business in the city, and paid to the city treasurer the amount of the license tax demanded. Thereafter he presented to appellee, the county clerk of Powell county, the license issued to him by the city, and tendered the full amount of the license required by the State for 'the sale of such liquors, and demanded a license, which the clerk refused to issue. Thereupon he brought this suit, asking that a writ of mandamus issue against appellee, as clerk, directing him, upon the payment of the requisite license fee, to issue a license. The petition was dismissed, and he appeals.
A local option election was held in Clay City in September, 1896, and at this election a majority voted in favor of the sale of spirituous, vinous, and malt liquors. The result of the election was certified
The only question to be determined is: What effect did the election held in Powell county in 1905 have upon the election held in Clay County alone in 1896? The statute in force in 1896 and 1905 provided in section 2554 of the Kentucky Statutes of 1903, that “upon application by petition signed by a number of the legal voters in each precinct in the territory to be affected * * * it shall be the duty of the county •judge of such county at the next regular election •thereof after receiving said petition to make an order on his order book directing an election to be held in the said county, city, town, district or precinct, as the •case may be.” Under authority of this section, the •election in Clay City and in Powell county was held. Section 2560 provides that “if, at any election held for an entire county, it shall be found that a majority of the legal votes cast at said election are in favor of the sale, barter or loan of spirituous, vinous and •malt liquors, then, in that event, it shall not be lawful
Under this1 section, at an election held for the county at large, the fact that a majority of the legal voters in the county and in each precinct thereof vote against the sale of liquor does not affect the status of a city within the county that had previous to the county election voted in favor of the sale of such liquors ,unless at the election held for the entire county a majority of the legal voters voting in such
"Wherefore the judgment is reversed, with directions to proceed in conformity with this opinion.