Ex parte Burnside

• Decision Date: 10 December 1887
• Citation: 6 S.W. 276,86 Ky. 423
• Parties: Ex parte BURNSIDE.
• Court: Kentucky Court of Appeals

6 S.W. 276

86 Ky. 423

Ex parte BURNSIDE.

Court of Appeals of Kentucky.

December 10, 1887

Appeal from circuit court, Lincoln county.

Petitioner E. H. Burnside, applied to the Lincoln county court for a license to retail liquors, which was denied, under the act of April 14, 1886, and, upon appeal to the circuit court, this refusal to grant the license was affirmed. Petitioner appeals, and assails the act in question as unconstitutional.

R. C Warren, W. H. Miller, and Welch & Saufley, for petitioner.

W. O Bradley and Wm. Herndon, for respondent.

HOLT J.

The application of the appellant, E. H. Burnside, to the Lincoln county court for "a tavern license, with the privilege of retailing liquor," was rejected, upon the ground that it was absolutely forbidden by the act of the legislature approved April 14, 1886, and entitled "An act to authorize the people of Lincoln county to vote on prohibiting the sale of liquors, and fixing the penalty for the sale of liquors, in said county." 1 Acts 1885-86, p 1400. The circuit court, upon appeal, affirmed this ruling, in so far as it denied the privilege of retailing spirituous liquors; and doubtless, in doing so, was controlled by the same reason that influenced the lower court. We are now asked, upon several grounds, to declare the law above named unconstitutional.

Section 37, art. 2, Const., provides: "No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title;" and it is claimed that in this instance this provision of the organic law has been disregarded. It is well settled that legislation will not be declared unconstitutional by the judiciary if it be merely of doubtful character in this respect. It must be clearly violative of the fundamental law, to authorize the exercise of such power. The first and second sections of this act authorize a submission to the voters of Lincoln county of the question whether the sale of liquor shall be prohibited therein, and provide how the vote shall be taken. The third section declares that if a majority of them vote in favor of it, that "then it shall be unlawful, from and after the entry of the result of said election in the order-book of the clerk's office, for any person or persons to sell spirituous, vinous, or malt liquors in said county: provided, that any person or persons who may, at the time of said election, have license to sell liquor as a beverage, may continue to do so until the expiration of the time for which the license was given." The fourth, fifth, and sixth sections declare the sale a misdemeanor, if the provisions of the act are accepted by the voters; provide a penalty, and the mode of enforcing it; and for a second vote, if the law be not accepted by the first one. This is all of it. All of its provisions relate to the same subject, are naturally connected, and are not foreign to the subject expressed in the title. This is all that is required as to the body of the act. Phillips v. Bridge Co., 2 Metc. (Ky.) 222.

It is said, however, that the title does not sufficiently express the subject or object of the act; indeed, that it does not do so at all, and that the law is masquerading under a false name. It, however, states that it is an act to authorize the voters of the county "to vote on prohibiting the sale of liquor," and that it is also one fixing the penalty for a sale in violation thereof. The act relates to nothing else. Certainly the reading of the title would inform the hearer of the entire nature of the law; and this was the object of the constitutional provision above cited. It was to guard against improvident legislation. It could not well be supposed by any one that an act so entitled provided only for a vote by way of direction or advice as to future legislation upon the subject. The purpose of the body of the act is to forbid the sale of liquor in the county; and it is apparent that the most ordinary legislator in experience and understanding would have understood from the reading of the title that it related to prohibiting such sale, and a vote by the people as to the adoption of its provisions. In the case of Galle v. Owen County Court, 83 Ky. 61, an act with a title substantially like this one was assailed upon the same ground, but was sustained. It was settled in the case of Com. v. Weller, 14 Bush., 218, and the doctrine is supported by the text-books and other authorities, that an act of the legislature relating to a county may be submitted to its voters, not for the purpose of determining whether it is a law, but whether they will accept its provisions.

It is insisted, however, by distinguished counsel, with zeal and ability, that liquor is property; that this act forbids its sale, and is in effect a spoliation of it; that it is an exercise of absolute, arbitrary power over the property and individual right of the freeman, and is therefore interdicted by our bill of rights and the fourteenth amendment to the constitution of...