C.B. George & Bro. v. City of Winchester
| Decision Date | 02 June 1904 |
| Parties | C. B. GEORGE & BRO. v. CITY OF WINCHESTER et al. NUNAN v. SAME. |
| Court | Kentucky Court of Appeals |
Appeals from Circuit Court, Clark County.
"To be officially reported."
Mandamus by C. B. George & Bro. and by John F. Nunan against the city of Winchester and others to compel the board of council of such city to issue licenses permitting petitioners to sell liquors in defendant city. From a judgment in favor of defendants, plaintiffs appeal. Reversed.
J. F Winn and J. M. Stevenson, for appellants.
Pendleton & Bush, for appellees.
On June 27, 1896, by a vote of the people of Clark county, the local option law was put in force in the county, including the city of Winchester. On June 28, 1899, an election was held in the North Winchester precinct to determine whether the local option law should become inoperative in that precinct. A majority of the voters voted that it should become inoperative therein. Winchester is a city of the fourth class. The appellants applied to the board of council for licenses to sell spirituous vinous, and malt liquors in that precinct. Without giving the appellants an opportunity to be heard upon the question as to whether they were suitable persons to carry on the business the board of council arbitrarily refused to grant a license. Thereupon it adopted a resolution expressing the sense of the board that no license to sell spirituous, vinous, or malt liquors should be "granted in the city of Winchester during the period of two years, our terms of office." The appellants instituted these proceedings to compel the board of council to grant to each a license to sell liquors. It is averred in the petitions that the plaintiffs are men of good character, and suitable persons to conduct the business of selling liquors. The real question to be determined is can the board of council of a city of the fourth class arbitrarily refuse to grant a license to retail liquor in a precinct which has voted in favor of the sale?
More than three years had elapsed from the time the vote was taken upon the question as to whether the local option law should be in force in Clark county to the date when the vote was taken in the North Winchester precinct on the question of the local option law becoming inoperative in that precinct. Section 61 of the Constitution makes it the duty of the General Assembly to provide by general law a means whereby the sense of the voters of any county, city, town, district, or precinct may be taken as to whether or not spirituous, vinous, and malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. As required by that section, the General Assembly passed a local option law for the state. The General Assembly has left to the decision of each local community under which of two policies it shall live--the license system or prohibition-and authorized the people to take a vote at certain intervals, and thus change from one system to the other as they see proper. Sections 2561, 2563, Ky. St. 1903; Cole v. Commonwealth, 39 S.W. 1029, 19 Ky. Law Rep. 324; Smith v. Patton, 45 S.W. 459, 20 Ky. Law Rep. 165; Commonwealth v. Overby, 53 S.W. 36, 21 Ky. Law Rep. 843; Commonwealth v. Bottoms, 57 S.W. 493, 22 Ky. Law Rep. 412.
It is urged that the voters did not vote upon the question as to whether liquors should be sold in North Winchester precinct because a vote that the local option law should be inoperative is not equivalent to voting that liquors might be sold. It is expressly provided in section 2554, Ky. St. 1903, that the question may be submitted to the voters "whether or not any prohibition law in force in any county, city, town, district or precinct by virtue of any general act or special act or acts shall become inoperative." The question as provided by the statute was submitted to the voters of the precinct in question. It is evident that every voter, when he voted, knew...
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