Lewis v. Commonwealth, 140 Ky. 554

Lewis v. Commonwealth

140 Ky. 554 | Ky. Ct. App. | 1910

Opinion of the Court by

Judge Nunn

Affirming.

On December 1, 1909, the Warren county court granted-appellant a merchant’s license to retail spirituous liquors in quantities of not less than a quart, at his place of business in Delafield, in that county. The county attorney, as authorized by the Statutes to do, appealed to the circuit court from the action of the county court. The case was tried there and a judgment entered reversing the county court and directing it to refuse the' license and dismiss the application, and from that judg*555ment this appeal is prosecuted. It is conceded that the county court has a large discretion in the matter of granting such license,, and its action should not he disturbed, unless there was a clear abuse of discretion. Appellant produced the proof required by the Statutes entitling him to a merchant’s license, and the action of the county court should not have been reversed, except for the following reasons: In April, 1909, appellant was a partner in business as a merchant with one John M. Potter, the style of the firm being “Lewis & Potter.” They had a merchant’s license to sell liquor in quantities of not less than a quart. While the firm held such a license, J. M. Potter sold liquor in more than one instance to a minor, for which he was convicted. After this conviction, and in June, 1909, the license of the firm of Lewis & Potter was revoked, and Lewis appealed from that judgment. He contended that the court had no right to revoke his license, because he had hot committed the offense, that Potter alone committed it, but this court affirmed the judgment of the lower court, (Lewis & Potter v. Commonwealth, 121 S. W. 643), and said that there was but one license granted, and that it was issued to both doing business as a firm. The only question presented upon this appeal is whether Lewis, a member of the firm of Lewis & Potter, is prohibited by section 4213, Kentucky Statutes, from being granted another license within twelve months next after the revocation of the license of Lewis & Potter. That section is as follows:

“Any person whose license has been cáncelled shall not be granted another license for twelve months thereafter.”

It is conceded that the application of Lewis for license was made within twelve months after the revocation of his and Potter’s license, and we are of the opinion that this section of the Statutes is a bar to his right under this application. To hold otherwise would render the Statute ineffective, as most merchants, hotel-keepers and bar-keepers sell liquor by agents and not in person, and if the persons holding license are required to personally commit the offenses named in the Statutes before they are prohibited from obtaining another license within twelve months, the Statutes would be of no consequence, as they would invariably conduct the business by agents. Potter, in committing the offense referred to was not acting for himself alone; he represented himself and appellant, and if the Statute does not apply to Lewis, *556it,could uot apply to Potter. It is true, Potter might have been refused a license upon the ground that while inter-, ested in the firm he violated the law and for that reason did pot ,sustain a good moral character,, but that has no-application to the question before us. If the Statute und.er consideration applies to one, it applies to the other. Appellant had an interest in the licensq revoked, which is a bar to the application fqr other license made within twelve months succeeding the revocation.

For these reasons the judgment of -the lower court is affirmed. ...