135 Ky. 411 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
In August, 1903, a local option election was .held under the law then in force for the entire county of Muhlenberg. At that election a separate vote was had within Central City. The county voted dry and ihe city wet. No election has been held in the entire county since that time. October 6, 1906, another election was held in Central City, and the city again voted wet. In July, 1908, petitions were filed with ;he county judge, signed by the requisite number of voters residing in magisterial district No'. 1, which is composed of six voting precincts, including Central City, asking for local option election in said magisterial district. Petitions were thereafter filed, signed by the requisite number of citizens of Central City, asking for a separate vote at the same time.
The election was on August 31st ordered to be held on December 7th, and it was so held; the officers who officiated at the regular November election, 1907, acting as the officers of this election, except in cases where they had removed from the precinct or otherwise disqualified themselves. Jn this election on December 7 th the district went dry by something like 400 and the city by 23. The residents of the city were with few exceptions denied the right to participate in the election for the district; separate ballots being furnished .to the voters for the district election from those for the city election. The wets con
Many reasons are assigned why the election should be set aside, the principal of which is that there was no authority of law to warrant the county judge in ordering a local option election in magisterial district No. 1, and from the conclusion which we have reached this is the only question which we will consider. Under the Cammack act, which became a law March 14. 1906 (Acts 1906, p. 86, c. 21), the county is the absolute unit in all counties save those in which there is situated a city of the first, second, third, or fourth class, and in such counties all of the territory outside of such city limits is an absolute unit, and the city is made a separate unit. This was a complete reversal of the order of things that had theretofore existed, for under the law in force prior to the adoption of this act the precincts and incorporated town of whatever class were recognized as sparate units, and might take a separate vote upon the question as to whether or not local option should be enforced within a given boundary or territory.
The old law was not satisfactory to the temperance or local option adherents, and, in order that the citizens in one part of a county might have a voice in determining whether or not prohibition should be enforced in another part of the county, the law was amended as above indicated so as to make the county the unit, and the only exception which the act recognizes is that cities of the first, second, third, and fourth class are made separate units, but in order for them to avail themselves of the right to be recognized
Central City is a city of the fourth class. It had on the 6th day of October, 1906, voted wet. The entire county outside of said city was at that time dry. No vote had been taken in the entire county since 1903, at which time it voted dry. It is most earnestly insisted for appellant that, inasmuch as the law expressly provides that no election can be held upon this question oftener than once in three years, the county judge had no right to order an election upon this question at all unless he has ordered it for the entire county; that there is no authority in law whatever for ordering a vote in a subdivision of the county other than a city of the first, second, third, or fourth class where such county has theretofore voted dry. The whole object of temperance legislation has been to bring about prohibition and create dry territory, and courts in dealing with this class of legislation have borne in mind this primary object of the Legislature, and have construed such acts as far as possible so as to carry out this legislative intent. Hence it
In other words, where no prohibitory laws are in force in the county, any magisterial district, voting precinct, or town of any class may vote to establish prohibition within the limits of such magisterial district, voting district, voting precinct, or town; but, where prohibition has been established in the entire county, a different rule obtains. A unit has been established, and the vote can never again be taken in any subdivision of that county other than in some one of the cities belonging to the excepted class, unless it is taken in the entire county. So that, where a precinct or magisterial district has once been made dry by by a vote of the county, it must forever remain dry, unless the bond is lifted by the people of the entire county. Egen, etc., v. Offutt, etc., 128 Ky. 314, 108 S. W. 333, 32 Ky. Law Rep. 1350. It is true, in the case to which we have just referred this identical question was not before the court, but just the converse of the conditions with which we are dealing were under 'consideration.
There the county was wet, and the precinct had taken a vote upon the question as to whether or not prohibition should be enforced within its limits and had voted dry, and the court held that it might do so, but in the same opinion distinctly stated that, if the county in which this precinct was situated had thereto
Applying the rule announced in that case to the ease, at bar, we find that there are in Muhlenberg county two units of equal dignity, one including all of the county outside of the limits of Central City, the other including the territory within the limits of Central City, and, so long as the city preserves its .identity by taking a vote upon the same day that the vote is taken in the entire county, its status cannot be changed by the will of the majority of the voting population of Muhlenberg county, much less of a magisterial district therein, and, the precinct or magisterial district in dry territory no longer being recognized as a unit, there was no authority under which the county judge could legally order the 'election in magisterial district No. 1, and, as a vote had been taken in Central City within less than three years from December 7, 1908, the county judge was without authority to order an election in said city on said date, and for these reasons both of said elections were illegal and absolutely void. . This being true, it is unnecessary to consider the other questions raised upon this appeal.
The judgment is reversed, with directions to the lower court to enter a judgment in conformity with this opinion, declaring each of said .elections null and void.
