Commonwealth v. Weller

• Decision Date: 10 October 1878
• Citation: 77 Ky. 218
• Parties: Commonwealth v. Weller.
• Court: Kentucky Court of Appeals

77 Ky. 218

Commonwealth v. Weller.

Court of Appeals of Kentucky.

October 10, 1878.

APPEAL FROM BULLITT CIRCUIT COURT.

THOMAS E. MOSS, ATTORNEY-GENERAL, J. S. MORRIS, COMMONWEALTH'S ATTORNEY, AND W. R. THOMPSON FOR APPELLANT.

W. R. KINNEY FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

In March, 1871, an act of the legislature was passed, entitled "An act to prohibit the sale of intoxicating liquors in the county of Bullitt." (2 Session Acts 1871, p. 321.) The first section of the act provides "that it shall be unlawful, after this act takes effect, for the County Court of Bullitt County, or any person or persons, to grant a license to any person or persons to sell by wholesale or retail any brandy, whisky, or intoxicating liquors, or a mixture thereof, within the limits or jurisdiction of Bullitt County." After making certain exceptions and annexing penalties for the violation of the law, it is further provided, in the fourth section, "that this act shall take effect whenever it shall be ratified by a majority of the voters of said county, voting thereon at any election in said county, and a poll shall be opened in every election precinct at the next August election, for its adoption or rejection, and the county court clerk shall prepare a column in the poll-books in said county for taking said vote, and the result shall be certified to the county court and entered upon the records," etc. An election was held under the provisions of the act, and a majority of the votes cast against the right to grant a license for the sale of intoxicating liquors.

In September, 1875, the county court of the county assumed the power to grant a license to sell liquor to the appellee, and having sold under this authority, when indicted for the offense, he justified under the license, and now claims that the county court had full power to grant the privilege.

The right of the county court is based upon an act of the legislature, approved January 26, 1874, and known as the local-option law, under which a vote was taken, and resulted in favor of the right to grant license, and one of the principal questions in the case is, "did the act of January, 1874, repeal the local law of 1871, or authorize the voters of Bullitt County to again pass upon the question?" Before proceeding to this inquiry, it is first argued by counsel for the appellee, that the act of March, 1871, is unconstitutional, for the reason that in authorizing a vote to be taken under its provisions, the legislative power of the state over the subject, so far as it applies to the county of Bullitt, has been transferred by the acts in question to the voters of that county, and this argument is made to rest upon the peculiar language of the act.

It is essential under our form of government, says Mr. Cooley, that every legislative enactment must be complete in itself, and take effect as a law at the time it leaves the hands of the legislative department, and if the act we are considering has no inherent force or vitality as a law when approved by the executive, it can not become a law by reason of a popular vote approving its provisions. Numerous authorities may be found denying the power of the legislature to give to the people of a particular locality the right by a popular vote to control the sale of intoxicating liquors under the provisions of what is commonly called local-option laws. Many of these decisions have been reconsidered, and now the decided weight of authority sustains the constitutionality of such legislation.

While the law-making power can not delegate to the people the right to assemble and frame such laws as may be deemed best for their own interests, and to adopt them by a popular vote, it is not inconsistent with our representative system of government to consult the popular will as to the propriety of a law already enacted. As said in the case of Smith v. Jonesville, 26 Wis., "The legislature is not attempting in such a case to delegate its authority to a new agency, but the trustee (the representative) is taking the opinion of the principal upon the necessity, policy, or propriety, of an act which is to govern the principal himself."

The legislature, by the passage of the act we are considering, had already determined its expediency, and we perceive no reason why such a local law, affecting alone the people of Bullitt County, should not be submitted to them, and its going into operation made to depend upon a vote...