Com. v. McCarty
| Decision Date | 08 October 1903 |
| Citation | 76 S.W. 173 |
| Parties | COMMONWEALTH v. McCARTY. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Kenton County.
"Not to be officially reported."
D. M. McCarty was prosecuted for selling liquors within prohibited territory, and from a judgment sustaining a demurrer to the indictment, the commonwealth appeals. Affirmed.
C. J. Pratt and M. R. Todd, for appellant.
Hall & McLean, for appellee.
The indictment charges the appellee with having sold liquors within the territory formerly comprising the Third Magisterial District of Kenton county; that the question as to whether spirituous, vinous, or malt liquors should be sold within that territory was submitted to the legal voters of the district, a majority of whom voted against the sale of the liquor, which was properly certified; that on the 16th day of February, 1874, a petition signed by the required number of legal voters was filed, asking for the submission of the question; and that on the same day the county court ordered the election held. So the question presented is, was the order of the county court submitting the question valid? The statute only authorizes the court to make an order for an election at the next term of court after a petition is filed. The court having made the order at the same term at which the petition was filed, the election held under it was invalid. Smith v. Patton (Ky.) 45 S.W. 459; Doores v. Varnon, 94 Ky. 507, 22 S.W. 852; Webb v. Smith (Ky.) 34 S.W. 704; Wilson v. Hines (Ky.) 35 S.W. 627, 37 S.W. 148; Cress v. Commonwealth of Kentucky (Ky.) 37 S.W. 493; Commonwealth of Kentucky v. Shelton, 99 Ky. 120, 35 S.W. 128. The court properly sustained a demurrer to the indictment.
The judgment is affirmed.
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