Hessler v. Garner

• Court: Kentucky Court of Appeals
• Writing for the Court: CREAL, Commissioner.
• Citation: Hessler v. Garner, 266 Ky. 507, 99 S.W.2d 461 (Ky. Ct. App. 1936)
• Decision Date: 08 December 1936
• Parties: HESSLER v. GARNER, County Judge, et al.

99 S.W.2d 461

266 Ky. 507

HESSLER v. GARNER, County Judge, et al.

Court of Appeals of Kentucky

December 8, 1936

Appeal from Circuit Court, Breckinridge County.

Suit by J.T. Hessler against Pal Garner, County Judge, and others. From an adverse judgment, the plaintiff appeals.

Affirmed.

Blakely & Murphy, of Covington, and S.H. Monarch, of Hardinsburg, for appellant.

Walls &amp Kincheloe, of Hardinsburg, for appellees.

CREAL Commissioner.

On September 19, 1936, a local option election was held under the provisions of chapter 1, Acts of the General Assembly of Kentucky 1936, to determine whether the local option law should be adopted in that county. A large majority of the votes cast at such election were in favor of the adoption of such law.

On September 23, 1936, J.T. Hessler instituted this action in equity against the county judge, the county clerk, the sheriff and members of the election commission of Breckinridge county. He alleged that he was a citizen resident, legal voter and taxpayer of Breckinridge county in which he was engaged in the business of selling spirituous vinous, and malt liquors under the provisions of the Kentucky Alcohol Act. After the foregoing and other formal allegations, the purpose of the action is stated thus "The purpose of this proceeding is to enjoin the certification of the local option election held under the provisions of chapter 1, Acts of the General Assembly of the Commonwealth of Kentucky in 1936." And following this, it is alleged that plaintiff has a large sum of money invested in his business in the county, and if the election is legal and was legally held, it would destroy his business and his investment therein. After setting out in substance the provisions of the act relating to the petitions calling for such election as provided in section 2 thereof, it is alleged that "pursuant to the provisions of this section petitions signed by nineteen hundred forty eight (1948) persons, was lodged and filed in the clerk's office of Breckinridge county on July 3, 1936, asking that the sense of legal voters be taken on the proposition as to whether or not spirituous, vinous and malt liquors should be sold, bartered or loaned in Breckenridge county." The validity of the election was then attacked on numerous grounds including those to which we shall presently refer. He prayed that the defendants be enjoined and restrained from certifying the result of the election or making any order putting the local option law into effect or proceeding in any civil or criminal way against him by reason of the result of the election; that the election be declared null and void and that the petitions described in his petition be held insufficient for calling for such election.

General and special demurrers to the petition were overruled and defendants filed answer controverting the allegations of the petition. After evidence was heard orally it was adjudged that the temporary restraining order issued by the clerk of the court be dissolved and discharged and that the petition be dismissed at the cost of plaintiff, and he is prosecuting this appeal.

The grounds of attack on the validity of the election as set out in the petition, and which are relied on here, are, in substance: (1) That, as alleged and proved, the petitions calling for the election were not sufficient and did not contain 25 per cent. of the legal voters of the county, and that the provisions of the statute in that respect are mandatory; (2) that a number of petitions filed with the county clerk did not contain a caption showing for what purpose the names were placed thereon; (3) that the petition requesting the county judge to place upon the ballot the question of whether or not spirituous, vinous, or malt liquors should be sold in Breckinridge county and the question placed upon the ballot was, "Are you in favor of adopting the local option law in Breckinridge County?" and because of this inconsistency between the petitions and the ballot the election was void.

Counsel for appellant argue that by their action for injunction they are pursuing the proper remedy to prevent the certification of the returns or the entry of the order putting the local option law into effect, and in support of this contention cite Gayle v. Owen County Court, 83 Ky. 61. In that case it was held that mandamus was the proper remedy to prevent the recording of the vote in a local option election, if the law was unconstitutional. Other cases cited to sustain this contention deal with the sufficiency of the nominating petitions involved in contest of elections. Of course if a local option election were held under a law that was unconstitutional, the election would be void and the holding in Gayle v. Owen County Court would apply; but this case presents an entirely different situation. It is not contended that the law under which the election was held is unconstitutional, but all of the attack is centered on the validity or sufficiency of the steps preliminary to the holding of the election.

Section 13 of the act in question makes provision for contesting a local option election, and it is the contention of counsel...