Commonwealth v. Burk's Springs Distilling Co.

Decision Date24 February 1910
Citation137 Ky. 224,125 S.W. 306
PartiesCOMMONWEALTH v. BURK'S SPRINGS DISTILLING CO.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Marion County.

"To be officially reported."

Burk's Springs Distilling Company was indicted for violating the local option law. From a judgment sustaining a demurrer to the indictment, the Commonwealth appeals. Reversed and remanded, with directions.

Jas Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., R L. Durham, and W. W. Spalding, for the Commonwealth.

H. W Rives and H. S. McElroy, for appellee.

CLAY C.

Appellee Burk's Springs Distilling Company, was indicted by the grand jury of Marion county for violating section 2558a, Ky. St. (Russell's St. § 3646), which is a part of the local option law. The trial court sustained a demurrer to, and dismissed, the indictment. To review the propriety of this action, the commonwealth appeals.

No point is made as to the sufficiency of the allegations contained in the indictment. It is insisted, however, that the act of 1908, which is section 2558a, is invalid for various reasons. That act is as follows:

"Be it enacted by the General Assembly of the commonwealth of Kentucky:

Section 1. That section 1 of an act to regulate the sale of intoxicating liquors by wholesale in this Commonwealth, which was approved March 22, 1904, and amended by an act approved March 21, 1906, be, and the same is hereby amended, by adding after the word, manufacture, in the fifth line of said act as printed in the act of 1906, the following words, to-wit: 'To a wholesale dealer or a licensed retail dealer;' so that said act as amended shall read as follows:

"Section 1. It shall be unlawful to sell by wholesale any spirituous, vinous, malt or other intoxicating liquors, regardless of the name by which it is called, (except) manufacturers selling liquors of their own make, at the place of manufacture to a wholesale dealer or a licensed retail dealer in any county, district, precinct, town or city where the sale of such liquors has been prohibited by special act of the General Assembly or by vote of the people under the local option act. Any person violating this act shall be deemed guilty of violating the local option law and shall be subject to a trial and punished according to the provisions of same and its amendments." Sess. Acts 1908, p. 55.

This act does not violate section 51 of the Constitution, which provides: "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted and published at length." The act relates to but one subject--the regulation of the sale of intoxicating liquors by wholesale. It does not attempt to regulate the business of manufacturing intoxicating liquors; nor was it intended for that purpose. The only authority a manufacturer has to sell is by wholesale. When he sells, it is as a wholesale dealer. Therefore the title of the act was sufficient to include a manufacturer when it undertook to amend an act to regulate the sale of intoxicating liquors by wholesale. The act in question does not purport to amend the acts of March 22, 1904 (Acts 1904, c. 76) and of March 21, 1906 (Acts 1906, c. 87), by reference to their titles only; but so much of those acts as is amended is reenacted and published at length. Nor is the act void for uncertainty. Its language is susceptible of only one meaning. It applies only to manufacturers making sales in local option territory, and has no application to sales made elsewhere.

It is next insisted that the act in question is inoperative in local option territory where the law was different when the vote was taken. When the vote was taken in Marion county, the law was as follows: "The provisions of this act shall not apply to any manufacturer or wholesale dealer who, in good faith and in the usual course of trade, sells by the wholesale in quantities of not less than five gallons delivered at one time and not to be drunk on the premises." By the act of March 22, 1904, wholesalers were not included within the exceptions mentioned in section 2558a. Only manufacturers selling liquors of their own make were permitted to sell in local option territory. The act of 1904 was again amended by the act of 1906. The latter reads: "*** Except manufacturers selling liquors of their own make at the place of manufacture." The act in effect now--section 2558a--reads: "*** Except manufacturers selling liquors of their own make at the place of manufacture to a wholesale dealer or a licensed retail dealer." The argument is made that, under section 61 of the Constitution, the people of a particular community are given the right to determine whether or not spirituous, vinous, or malt liquors shall be sold therein; that, having voted in favor of local option, when a particular law was in force, the Legislature has no right, so far as that community is concerned, to amend or change the law. The law in question differs materially from the law in force at the time the vote was taken in Marion county. Appellees, therefore, urge that it is inapplicable to them. It will be observed, however, that section 61 of the Constitution simply provides for submitting to the people of any county, city, town, district, or precinct the question whether or not spirituous, vinous, or malt liquors shall be sold. It does not deny to the Legislature, where the vote is in favor of local option, the right to determine when and under what circumstances sales may be made. Thus in the case of Crigler, etc., v. Commonwealth, 120 Ky. 512, 87 S.W. 276, 27 Ky. Law Rep. 918, this court held that notwithstanding the local prohibition law, commonly called the ...

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5 cases
  • Edrington v. Payne
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 12, 1928
    ...S.W. 32; Morrison v. Com., 197 Ky. 108, 246 S. W. 128; Jefferson Co. v. Cole, 204 Ky. 27, 263 S.W. 1114. In Commonwealth v. Burk's Springs Distilling Co., 137 Ky. 224, 125 S.W. 306, an act amending section 1 of an act approved March 22, 1924, without setting out any other sections of the ac......
  • Board of Penitentiary Com'rs v. Spencer
    • United States
    • Kentucky Court of Appeals
    • May 28, 1914
    ... ... penal institutions of this commonwealth,' which became a ... law March 5, 1898." The act then reads: "Be it ... were repealed ...           In ... Com. v. Burk's Springs Distilling Co., 137 Ky. 224, ... 125 S.W. 306, the title of an act ... ...
  • Ex Parte Deats
    • United States
    • New Mexico Supreme Court
    • June 9, 1917
    ...the district law as amended is concerned. For specific application of this doctrine in a local option case, see Com. v. Burk's Springs Distilling Co., 137 Ky. 224, 125 S. W. 306. It follows that Texico cannot claim any exemption from the operation of the act of 1917. Much stress is laid upo......
  • Frost v. Johnston
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 11, 1936
    ...of the amendment to the statute as re-enacted. It therefore complied with requirements of the Constitution. Commonwealth v. Burk's Springs Distilling Co., 137 Ky. 224, 125 S.W. 306, and cases cited in the opinion in the Spencer Case, A few lines at the close of appellants' brief are devoted......
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