116 Ky. 202 | Ky. Ct. App. | 1903
Opinion of the court by
Reversing.
This' proceeding and appeal involves the validity of the following ordinance, passed by the general council of the city of Paducah, a city of the second class:
“An ordinance prohibiting the selling, dispensing or giving away of any spirituous, vinous or. malt liquors, between the hours of 10:30 o’clock p. m. and 5 o’clock a. m.; closing saloons, coffee houses and like places of business during said hours; providing for the removal of obstructions to an interior view from the exterior and front of any building occupied by a saloon, coffee house or like business or calling, on certain days and certain hours, and prescribing penalties for violation of its provisions.
“Be it ordained by the General Council of the City of Paducah, Ky.
“Section 1. That it shall be unlawful for any saloon, coffee house or other place where spirituous, vinous or malt liquors' are sold by the drink in the city of Paducah, to sell, offer for sale or give away either or any of said liquors between the hours of 10:30 p. m. and 5 o’clock a. m.
“Sec. 2. That each and every saloon, coffee house or other place where spirituous, vinous or malt liquors are sold by the drink, in the city of Paducah, shall be tightly closed, front, side and rear, at 10:30 o’clock p. m. and the same shall not be reopened until 5 o’clock a. m. the succeeding morning, and the entrance to or exit frond any saloon, coffee house, or other place where spirituous, vinous or malt liquors are sold by the drink in the city of Paducah by any person or persons during the time herein specified that*206 same shall be closed shall be held as prima facie evidence of a violation of this section.
"Sec. 3. That whereas the police of' the city are deterred by the regulations governing the police department from entering the saloons, each and every saloon,. coffee house or other place where spirituous, vinous or malt liquors are sold by the drink in the city of Paducah, shall in the front doors and front partitions of same, hoist all blinds, ■open all screens, remove stained glass or frosted windows, and remove boxes or merchandise, and any other matter or thing which may obstruct the view of the. interior of such place from the front of thereof, on all days now fixed by the State law that these places shall be closed, and between the hours of 10:30 p. m. and 5 o’clock a. m. as provided for dosed hours in the preceding section.
“Sec. 4. That it shall be unlawful for any druggist, grocery-man, -wholesale liquor dealer, or other person, to dis: pense, sell or givb away any spirituous, vinous or' malt liquors between the hours of 10:30 o’clock p. m. and 5 o’clock a. m.
“Sec. 5.. That for the violation of any of the provisions of any of the foregoing sections, the offender, upon conviction of the first offense, shall be fined any amount not less than ten dollars ($10.00") nor more than fifteen dollars ($15.00) ; upon the conviction of the- second offense, the offender shall be fined in any amount not .less than fifty dollars ($50.00) nor more than sixty dollars ($60.00) ; upon conviction of the third offense, the offender shall be fined in a any amount not less than seventy-five dollars ($75.00) nor more than one hundred dollars ($100.00), and in addition thereto the license to-sell spirituous, vinous or malt liquors, in the city of Paducah, issued to such offending person, or firm, shall be forfeited.
*207 “Sec. 6. That all ordinances, or parts of ordinances, conflicting with any of the provisions of this ordinance, .are to ■ the extent of such confliction, hereby repealed, and this ordinance shall take effect from and after its passage and approval.
“Adopted by the Council, Nov. 17th, 1902.
“Chas. Reed, Prest.
“Adopted by the Board of Aldermen, Dec. 4th, 1902.
“Chas. Q. C. Leigh, Prest.
■ “Approved Dec. 19th, 1902. D. A. Yeiser, Mayor.”
The first objection to the ordinance is, it is claimed, that its title embraces more than one subject, and is therefore repugnant to section 3059 of the statutes, namely: “No ordinance shall embrace more than one subject, and that shall be expressed in the title.” The court is of-the opinion that the fact that the subject-matter is detailed in the title-more minutely than is necessary does not invalidate the ordinance. Allen v. Hall, 14 Bush, 85. What this title-really means, and the sum of it is, that the ordinance is one “to further regulate the sale of spirituous, vinous and malt liquors in the city of Paducah.” The main objection to the provisions of this ordinance is, it is argued, that it is an improper exercise of the police power of the State. Among the powers conferred upon the municipalities of cities of the second class is that (subsection 10, section 3058, Kentucky Statutes): “To restrain, regulate and prohibit the selling or giving away of any spirituous, vinous - or malt liquors, by any person within the city other than those duly licensed; to forbid and punish the selling or giving away of any spirituous, vinous or malt liquor to any woman, min- or or habitual drunkard.” Subsection 23, section 3058: “To impose, enforce and collect fines, forfeitures and penalties, for the breach of any provision of this act or any ordin
Concerning, the inhibition of a druggist-dispensing spirit-irons, vinous -or malt liquors between the hours of 10 ;3Q p. m. and 5 o’clock a. m., we are of opinion that the ordinance is invalid. The druggist is not permitted to dispense or sell spirituous, vinous or malt liquors at any time by the drink or as a beverage. It must be disposed of only as a medicine, and generally upon prescription. It may be important, •and, indeed, necessary,. that this right of the druggist to lawfully dispose of this ware at any time of the day or night should be unrestricted by such interference. Nor is it a' . reasonable exercise of the police power of the State to prohibit wholesalers of liquors from moving or disposing of their wares at wholesale, not to be drunk on the premises ■ or adjacent premises, at any hour that may best suit the convenience of the parties.
Appellants MicNulty and Graham, saloon keepers, tendered and offered to- file an answer controverting the validity of the ordinance upon the ground that it had not been published as required by section 3045, Kentucky Statutes, which requires such publication before an ordinance shall be in force. If the publication has not been made in fact a,s required by the statute, then the ordinance would not be enforced. The answpr should have been permitted ' to be filed, and the question of fact that it presented investigated. However, there is no limitation as to when the ordinance should be published. We are of opinion that it would become effective from the time that it was or shall be published as ¡provided in that section.
A further complaint is made in the answer of McNulty' and Graham that the .ordinance “Was never recorded into the journal of the proceedings of the board of council of
The judgment is-reversed, and this cause remanded, with •directions for proceedings consistent herewith.