Commonwealth v. Shelton

• Decision Date: 03 April 1896
• Citation: 99 Ky. 120
• Parties: Commonwealth v. Shelton.
• Court: Kentucky Court of Appeals

Page 120

99 Ky. 120

Commonwealth v. Shelton.

Court of Appeals of Kentucky.

April 3, 1896.

APPEAL FROM LINCOLN CIRCUIT COURT.

WM. J. HENDRICK, ATTORNEY-GENERAL FOR APPELLANT.

W. G. WELCH & W. H. MILLER FOR APPELLEE.

JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.

The indictment charges that the accused, on the 15th day of May, 1895, unlawfully sold spirituous, vinous and malt liquors in Stanford magisterial district. The indictment is under the "Local Option Law." The election to determine whether or not liquors should be sold in the Stanford magisterial district was held under the local option act of 1892.

It is contended the act is invalid because the Journals of the House and Senate relating to the passage of the act show a certain state of facts with reference thereto. The Journals are not admissible as evidence for the purpose mentioned. The act in question must be accepted as having been constitutionally passed. (Lafferty, county judge v. Huffman, &c., ante.)

This question was so fully considered in the opinion in that case it is unnecessary to discuss it here. The petition was lodged with the judge of the county court on the 25th day of January, 1894, and on the 26th day of March, 1894, the election was held. The act provides that the election shall not be held "earlier than sixty days after the application is lodged with the judge." It does not say sixty days after the day on which the application is made, but says after the application is lodged. The time begins to run after the act of lodging the application, not after the day on which the application is lodged. In estimating the sixty days the day on which the application for the election is made must be included, and sixty days had elapsed before the day on which the election was held. This interpretation is in accord with numerous decisions of this court. (Wood v. Commonwealth, 11 Bush, 220; Handley v. Cunningham's trustee, &c., 12 Bush, 401; Mooar v. Covington City National Bank, 80 Ky., 305; Chiles v. Smith, 13 B. M., 460.)

It follows the election is not invalid for the supposed reason that the required time had not elapsed from the time of the act of lodging the application therefor until the election. The indictment alleges that "the judge of the county court of Lincoln county, upon a written petition which he had received and filed January 25, 1894, by a number of legal voters, equal to 25 per cent. of the votes cast in each of the precincts in said Stanford magisterial district at the last preceding general election, and which requested him to do so made an order," etc.

It is not alleged in terms that the application for the election was made by written petition, "signed by a number of legal voters in each precinct" of the magisterial district, equal to twenty-five per cent of the votes cast in each of said precincts at the preceding general election. It is insisted that the indictment should charge that the petition was signed by the legal voters, and further that the legal voters thus signing the petition were voters in Stanford magisterial district. The indictment charges that upon a...