Rogers v. Commonwealth

• Decision Date: 18 December 1936
• Citation: 266 Ky. 679
• Parties: Rogers et al. v. Commonwealth et al.
• Court: United States State Supreme Court — District of Kentucky

266 Ky. 679

Rogers et al. v. Commonwealth et al.

Court of Appeals of Kentucky.

Decided December 18, 1936.

1. Action. — Purpose of Declaratory Judgment Act is to guide parties in their future conduct to avoid useless litigation, and if actual controversy of justiciable character exists, remedy provided by act may be invoked (Civil Code of Practice, sec. 639a-1 et seq.).

2. Action. — Proceeding by liquor dealers for declaration of their rights with reference to continuance of their business pending final disposition of contest of local option election on liquor question held properly brought under Declaratory Judgment Act (Civil Code of Practice, sec. 639a-1 et seq.; Ky. Stats., secs. 2554c-1 et seq., 2554c-15).

3. Intoxicating Liquors. — Filing of contest in good faith on substantial grounds suspended operation of local option election on liquor questions (Ky. Stats., secs. 2554c-1 et seq., 2554c-13, 2554c-15).

4. Action. — Petition of liquor dealers seeking declaration of their rights with reference to continuance of their business pending final determination of contest of local option election on liquor question held not demurrable for failure to allege that contest case was being prosecuted with due diligence, in view of mandatory statutory provision regarding contest procedure (Ky. Stats., secs. 1596a-12, 2554c-1 et seq.).

Appeal from Taylor Circuit Court.

RICHARD P. DIETZMAN, THOMAS A. BALLANTINE and TANNER OTTLEY for appellants.

O.B. BERTRAM, W.W. WEBSTER, ABEL HARDING and A. E. FUNK, Assistant Attorney General, for appellees.

OPINION OF THE COURT BY JUDGE STITES.

Reversing.

This is an appeal from a judgment of the Taylor circuit court sitting in equity. On September 5, 1936, a local option election was held in Taylor county under the provisions of chapter 1 of the Acts of 1936 (Ky. Stats. 1936 Ed. sec. 2554c-1 et seq.). The voters expressed themselves as opposed to the sale of liquor in the county, but, in due course, a contest of the election was filed and is now pending. Before a determination could be had of the questions raised by the contest the 60 days, prescribed by section 2554c-15 as the date after the entry of the certificate of the election commission on which the local option law should become effective, had practically expired. Appellants, who are all liquor dealers in Tayor county, were confronted with the prospect of prosecution if they continued in business, notwithstanding the fact that a contest of the election was pending. They thereupon filed this suit, in which they seek a declaration of their rights with reference to a continuance of their business pending the final disposition of the contest, and further ask for an injunction against the defendant enforcement officers to prevent an interruption of their business by penal action pending a decision of the election contest. It will be observed that this proceeding is not itself a contest of the election contrary to the form of action prescribed for that purpose by the statute, but is in its nature purely ancillary to that proceeding and solely for the purpose of protecting the plaintiffs in their alleged property rights pending the final determination of the election contest. As a matter of fact, appellants moved to have this suit consolidated with the election contest, but their motion was denied. The chancellor sustained a demurrer to the petition, and, plaintiffs declining to plead further, the petition was dismissed. This appeal followed.

We are confronted with the duty, therefore, of determining the status of the appellants pending decision of the contest case.

It is argued at the outset that this proceeding may not properly be brought under the Declaratory Judgment Act (Civ. Code of Practice sec. 639a — 1 et seq.). It is claimed that this, in effect, is an attempt to attack the result of a local option election collaterally, which cannot be done. We think it is obvious that the appellants are not undertaking to attack the election, but are simply seeking an adjudication of their rights pending a decision of the contest on the merits. As said in Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614, 33 S.W. (2d) 601, 603:

"It is true the purpose of the Declaratory Judgment Act was and is to guide parties in their future conduct to avoid useless litigation. If an actual controversy exists, and that controversy is of the justiciable character necessary to meet the demands of ...