Com. v. Throckmorton

• Decision Date: 20 September 1895
• Citation: 32 S.W. 130
• Parties: COMMONWEALTH v. THROCKMORTON.
• Court: Kentucky Court of Appeals

32 S.W. 130

COMMONWEALTH v. THROCKMORTON.

Court of Appeals of Kentucky.

September 20, 1895

Appeal from circuit court, Robertson county.

"Not to be officially reported."

Robert Throckmorton was indicted for unlawfully selling intoxicating liquors. A demurrer to the indictment was sustained, and the commonwealth appeals. Affirmed.

Wm. J Hendrick, for appellant.

EASTIN J.

Appellee Robert Throckmorton, having been indicted by the grand jury for unlawfully selling whisky in Robertson county, Ky demurred to the indictment; and his demurrer having been sustained by the circuit court, and the indictment having been dismissed, the commonwealth prosecutes this appeal from that judgment. The only question presented by the record is as to the sufficiency of the indictment, and, while we are called upon to decide this question unaided by argument of counsel either for appellant, in support of its sufficiency or of counsel for appellee, denying its validity, yet this court finds but little difficulty in reaching a conclusion. The offense charged in the indictment is the violation of a local or special statute. The allegation is that the sale was made "contrary to the form of the statute providing against the sale, vending, and bartering of liquors in said Robertson county, Kentucky." While the legislative act relied on is not set forth in terms, and is only referred to in this general way, yet this court will presume that like all such acts applicable to a single county, and regulating or restricting the sale of liquors within a certain limited district, it was only to become operative after being submitted to a vote of those who were to be affected by its provisions, or after the will of the voters within the district embraced by its terms had been, in some manner expressed concerning it. In other words, this court will take judicial notice of the fact that such enactments are not self-operative, and do not take effect by virtue of their own terms, and without being, in some form, submitted to those most deeply concerned in them, for their approval or rejection. There is nothing on the face of this indictment to show, or even suggesting, that this statute with reference to the sale of liquor in Robertson county was ever, in any manner, submitted to, or acted upon by, the voters of that county; and certainly there is nothing contained in it to show a compliance with all or any of the conditions or...