Board of Trustees of Town of New Castle v. Scott

Citation101 S.W. 944,125 Ky. 545
PartiesBOARD OF TRUSTEES OF TOWN OF NEW CASTLE v. SCOTT. GENTRY v. PEYTON ET AL.
Decision Date03 May 1907
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Henry County.

Appeal from Circuit Court, Lincoln County.

"To be officially reported."

Mandamus by J. T. Scott against the board of trustees of the town of New Castle. From a judgment granting the writ, defendants appealed, which appeal was consolidated with similar application for mandamus by C. V. Gentry against J. F. Peyton and others, and from an adverse decree Gentry appeals. Judgment reversed in the first case, and affirmed in the second.

W. B Barbour, W. M. Carroll, and Cammack & Perry, for appellant board of trustees of town of New Castle. G. B. Saufley, for appellant C. V. Gentry.

Charles Carroll, J. S. Morris, Greene & Van Winkle, and Kohn, Baird Sloss & Kohn, for appellee J. T. Scott. P. M. McRoberts, J B. Paxton, and Chinn & Edelen, for appellee J. F. Peyton.

O'REAR C.J.

These cases, involving a common question, are heard together and decided together. The question is the constitutionality of the act of March 14, 1906 (Laws 1906, p. 86, c. 21), amendatory of the local option law, and which is commonly called the "Cammack County Unit Bill." The Henry circuit court held the act to be unconstitutional. At least, that seems to be the effect of the judgment and opinion of that court. The Lincoln circuit court held to the contrary.

Section 61 of the Constitution of this state reads as follows: "The General Assembly shall, by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of such liquors. All elections on this question may be held on a day other than the regular election days." Chapter 81 of the Kentucky Statutes of 1903 (Carroll's) relates to intoxicating liquors, and articles 1 and 2 of that chapter are set apart to the local option law. Sections 2554 to 2568, inclusive, deal with the manner of putting the law in force. Those sections provide how, and when elections are to be held for taking the sense of the people of the territory to be affected by the vote. Section 2560 dealt with the effect of the vote upon the territory in which the election was held. It was under this statute that the cases which have come before this court in past years since 1891 have been decided. Of them we will have occasion to take notice later in this opinion.

The statute passed at the last Legislature, the validity of which is the subject of this litigation, reads:

"An act to amend section 2560 of the Kentucky Statutes, it being a portion of article 1 of chapter 81 of the Kentucky Statutes, entitled, 'Liquors, Intoxicating.'

Be it enacted, etc.

Section 1. That section 2560 of the Kentucky Statutes, it being a portion of article 1, of chapter 81, of the Kentucky Statutes, entitled 'Liquors, Intoxicating,' be, and the same is hereby, repealed, and in lieu thereof it is hereby enacted:

(a) No election in any town, city, district or precinct of a county shall be held, under this article, on the same day on which an election for the entire county is held, except that cities of the first, second, third and fourth classes may hold an election on the same day on which an election for the entire county is held. When an election is held in the entire county and a majority of the legal votes cast at said election are against the sale, barter or loan of spirituous, vinous, malt or other intoxicating liquors, then it shall not be lawful to sell, barter or loan any such liquors in any portion of the county. If at such an election for the entire county the majority of the legal votes cast are in favor of the sale, barter or loan of any such liquors, such election shall not operate to make it legal to grant license to sell, barter or loan such liquors in any territorial division of such county from which the sale, barter or loan has been excluded by an election held under this article, or by special act, but the status of such territorial division shall remain as if no such election had been held.

(b) No election shall be held in any election precinct under this act on the same day on which an election is held for the district or city of which the precinct is a part. If at an election held for such entire district or city, the majority of legal votes cast shall be in favor of the sale, barter or loan of spirituous, vinous, malt or other liquors, then the status in the several precincts thereof shall remain as it was before said election; but if the majority should be against the sale, then the sale, barter or loan of such liquors shall be unlawful in every portion of said district or city."

The facts of these two cases are as follows: The town of New Castle, in Henry county, is a city of the sixth class. On September 1, 1905, an election was held in that town, under the provisions of the statutes, to take the sense of the legal qualified voters whether spirituous, vinous, or malt liquors should be sold, bartered, or loaned therein. The result was, by a vote of 66 to 65, against prohibition. On June 11, 1906, at an election duly called and held for the entire county of Henry as to whether spirituous, vinous, or malt liquors should be sold, bartered, or loaned therein, prohibition carried by a vote of 1,596 for prohibition to 499 against it. Appellee Scott was a licensed retail liquor dealer in New Castle, and applied to the town council for a renewal of his license after the last-named election. His application was refused by the trustees, and he brought his action for a mandamus against them.

The city of Stanford is a city of the fifth class, in Lincoln county. On June 9, 1906, at an election duly called and held at Stanford, as to whether spirituous, vinous, and malt liquors should be sold, bartered, or loaned therein, prohibition was defeated by a majority of 44 votes. On September 12, 1906, at an election duly called and held for the entire county, prohibition prevailed by a majority of 1,256. Appellant Gentry was a licensed retail liquor dealer in Stanford, and, after the election in September of 1906, he applied for a renewal of his license, and it was refused. He likewise sued for mandamus against the city council to grant the license; he having complied, as Scott had at New Castle, with all the conditions of the town ordinances and statutes on the subject, and the licenses having been refused solely because the town councils deemed it unlawful to grant them after the county elections in favor of prohibition.

The contentions of counsel who assail the validity of the statute are that it violates the Constitution in at least three particulars: (1) That section 61 of that instrument is a guaranty of right to the municipality, the town, to control for itself, by the vote of its electors, whether or not liquors shall be sold in the town, and that the act now under investigation destroys that option by making it subservient to the option which the county may exercise upon the question; (2) that it violates the section of the Constitution which declares that all elections shall be free and equal; and (3) that it violates sections 59 and 60 of the Constitution, forbidding local and special legislation. There is also an objection that the title of the act is not expressive of its context.

The first of the contentions is manifestly the most important. The others are matters of detail that, if bad, could be remedied by appropriate legislation. But, if the proposition is true that each unit, and particularly the smallest unit is beyond the control of any of the others in any event, by virtue of the language of the Constitution, then the matter is at an end until the people shall change the Constitution. In this state the county is in most things the unit of political government. Jurisdiction of courts, venue of actions and of crimes, the assessment and collection of revenue, the laying out and maintaining of public highways, the granting of licenses, the administration of justice through trial courts, the probate of wills, settlement of decedents' and trust estates, the transfer and recording of titles to real estate, the government of common schools, the care of the poor--all matters of government pertaining to the state--are administered in the main, and in some instances entirely, through the subdivision of the state called the county. The county as a unit of government is older in point of time among the Anglo-Saxon people than either the state or the town. The matter of local self-government with them has always found its most consistent application through the medium of the county. The people have insisted upon, and have kept, the management of certain local affairs which concerned them peculiarly well in their own hands through so many generations, even under different governments, that the matter has come to be recognized as a primal right and a badge of their liberty. Without being so expressed in their Constitution, it has been tacitly recognized and acted upon as a thing so well established, and admitting of no doubt, as that it is found running through every Constitution, and every form of government which they have established in Kentucky, and in Virginia before the separation, that the county was the unit of local government. The New England town system, whatever its merits, has never found the place in the South, and in Kentucky, which it has in other parts of the Union. Custom, the habit of a people, is hard to change. The...

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