Mannini v. McFarland

• Decision Date: 25 June 1943
• Citation: 294 Ky. 837,172 S.W.2d 631
• Parties: MANNINI v. McFARLAND et al.
• Court: Kentucky Court of Appeals

172 S.W.2d 631

294 Ky. 837

MANNINI v. McFARLAND et al.

Court of Appeals of Kentucky

June 25, 1943

Appeal from Circuit Court, Franklin County; W. B. Ardery, Judge.

Action by P. C. Mannini against Roy L. McFarland and others constituting the State Alcoholic Beverage Control Board, and others, seeking a declaration of rights and to enjoin the board from refusing to renew plaintiff's license to sell malt beverages in his pool room in a fourth class city. A demurrer to the petition was sustained and from the judgment entered, plaintiffs appeal.

Reversed with directions.

J. W Harlan and Chenault Huguely, both of Danville, for appellant.

H Hamilton Rice, Asst. Atty. Gen., for appellee.

FULTON Chief Justice.

Section 3490-14 of the Kentucky Statutes, a part of the charter of fourth class cities, provided in substance that neither a poolroom nor a bowling alley should be operated in a room where alcoholic liquors were sold by retail. Nevertheless the State Alcoholic Beverage Control Board in 1942 issued to the appellant a license to sell malt beverages in his poolroom in Danville, a fourth class city, for the fiscal year ending July 1, 1943 because the Franklin Circuit Court in June, 1942 adjudged that section 3490-14 was impliedly repealed by the alcoholic beverage control law enacted in 1938, Acts 1938, c. 2.

However section 3490-14 was carried into the Kentucky Revised Statutes as a part of section 244.120, which now appears not in the charter of fourth class cities but in the chapter dealing with alcoholic beverages. Thus, this section is now the law unless it is inherently invalid even though the original statute was impliedly repealed. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122, 171 S.W.2d 41. For this reason the Board declined to renew the appellant's license and he thereupon filed this action against the Board and the Malt Beverage Administrator seeking a declaration of rights and appropriate injunctive relief. The trial court sustained a demurrer to the petition and dismissed it and the correctness of such action is called in question by this appeal.

It is the contention of the appellant that so much of KRS 244.120 as purports to prohibit the sale of alcoholic beverages in a poolroom or bowling alley is void as being special or local legislation in violation of sections 59 and 60 of our Constitution because it is applicable only to cities of the fourth class. We think the position is well taken.

Section 59 of our Constitution forbids the General Assembly to pass special or local acts concerning twenty-eight specified purposes. The twenty-ninth paragraph thereof provides that "in all other cases where a general law can be made applicable, no special law shall be enacted". Section 60 of our Constitution forbids the General Assembly to enact any special or local act indirectly by exempting from the operation of a general act any city, town, district or county. However, section 156 of our Constitution authorizes the division of cities and towns into six classes for purposes of their organization and government, the class of a city or town being determined by its population, and the General Assembly has classified cities and towns of the state pursuant to this authority. In determining whether the Act in question is special or local legislation we must consider section 156 in connection with sections 59 and 60.

The language of section 156 is so clear and unambiguous in saying that the authorized classification is for the purpose of organization and government that there would be little difficulty in disposing of the question before us if this were a matter of novel impression but some confusion has arisen in the cases in which this question was involved due to the failure of the court in some instances to keep in mind the purpose of the division into classes as manifested by this section.

In construing sections 59 and 60 this court said in Safety Building & Loan Co. v. Ecklar, 106 Ky. 115, 50 S.W. 50, 51: "We assert it to be elementary that the true test whether a law is a general one, in the constitutional sense, is not alone that it applies equally to all in a class,-- though that is also necessary,--but, in addition, there must be distinctive and natural reasons inducing and supporting the classification. A law does not escape the constitutional inhibition against being a special law merely because it applies to all of a class arbitrarily and unreasonably defined."

The principle thus enunciated shortly following the adoption of the present Constitution has been consistently followed. Thus, a classification according to population and its density, and according to the division of cities into classes, is not a natural and logical classification and cannot be sustained unless the act pertains to the organization or government of cities and towns or is incident thereto, or unless the classification has a reasonable relation to the purpose of the Act.

In City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592, 593, decided in 1898, the first case in which this question arose after the adoption of the present Constitution, the correct rule was announced. Following decisions of the Pennsylvania Court construing similar constitutional provisions, it was said that in order to lift an act affecting particular classes of cities or towns from the category of local or special laws it is necessary that it "be applicable to all the members of the class to which it relates, and must be directed to the existence and regulation of municipal powers and to matters of local government". Accordingly, it was held that a six months' limitation for actions against a municipality of the first class, contained in its charter, was a violation of section 59 and void as being local and special legislation. That case has been followed in a number of cases and has been cited both with and without approval down to the present time and has never been modified or overruled. Richardson v. Mehler, 111 Ky. 408, 63 S.W. 957; City of Louisville v. Hegan, 49 S.W. 532, 20 Ky.Law Rep. 1532; City of Louisville v. Seibert, 51 S.W. 310, 21 Ky. Law Rep. 328; James v. Barry, 138 Ky. 656, 128 S.W. 1070; Klein et al. v. City of Louisville et al., 224 Ky. 624, 6 S.W.2d 1104; Com. v. Kentucky Jockey Club, 238 Ky. 739, 38 S.W.2d 987; Logan v. City of Louisville, 283 Ky. 518, 142 S.W.2d 161. The true rule that a classification based on the class of cities was sustainable if the act pertained to governmental purposes was kept in mind in the Klein case and particularly in James v. Barry. The latter case appears to be the best considered case dealing with the question before us. In the course of the opinion it was said [138 Ky. 656, 128 S.W. 1072]:

"For certain purposes classification by population and its density are not only natural and logical, but any other basis would be unscientific and unsatisfactory. * * * But it was always pointed out, or plainly to be seen, that the legislation was also of a class which it was legitimate to classify upon the basis of population. On the other hand, instances have occurred where it was attempted to classify

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