Smith, Etc. v. Patton, Etc.
| Decision Date | 21 April 1898 |
| Citation | 103 Ky. 444 |
| Parties | Smith, Etc. v. Patton, Etc. |
| Court | Kentucky Court of Appeals |
APPEAL FROM PULASKI CIRCUIT COURT.
O. H. WADDLE FOR APPELLANTS.
JAMES DENTON AND J. R. COOK FOR APPELLEES.
JUDGE BURNAM DELIVERED THE OPINION OF THE COURT.
The questions raised on this appeal involve the validity of the local option election held in Pulaski County on August 3, 1896. The grounds relied on to invalidate the the election are:
First, that there was no application by written petition signed by the requisite number of voters presented to or received by the county court before the order for the election was made;
Second, that the city of Somerset, a city of the fourth clas. being within the limits of the county, can not be controlled in its police regulations by the vote of the entire county, and that the election held in the entire county, without any distinction as to the city, was invalid;
Third, that four precincts within the county had held similar elections within three years preceding this election, and that the vote taken in the entire county included these precincts without reference to the previous elections held herein;
Fourth, that the question propounded to the voter did not properly submit to him the question whether druggists should be licensed to sell liquor or not;
Fifth, that the petition under which the election was ordered, having been received by the judge on Saturday afternoon and the order for the election having been made on the following Monday morning, the petition was not received and the order for the election was made as required by law, and that therefore the election was illegal and void.
The agreed facts as shown by the record are as follows: About 4 o'clock P. M., May 16, 1896, twenty-six petitions in proper form were filed, all being attached together, with the county judge of Pulaski County requesting him to make an order directing an election to be held in that county on August 3, 1896, upon the proposition whether or not spirituous, vinous or malt liquors should be sold, bartered or loaned in the county, and requesting that the law and prohibition should be made to apply to druggists; each of the twenty-six petitions was signed by the legal voters of its respective precinct alone, there being twenty-six precincts in the county; these petitions were all alike, except that each showed the precinct from whence it came and were signed by a number of legal voters in the respective precincts in excess of 25 per cent. of such legal voters; when these petitions were presented to the county judge a special term of the Pulaski County Court was called for the reception and filing thereof and the usual orders to this effect were entered upon the records of the court by the clerk thereof, and on the following Monday morning, May 18, 1896, which was the first day of the next regular term of the Pulaski County Court after the reception of these petitions, the court entered an order directing that an election be held by the sheriff in Pulaski County in each precinct thereof at the following August election, which occurred on the 3d day of August, 1896, to take the sense of the legal voters of the county upon the proposition above named; and it was further ordered that if such election should result against the sale of such liquors, then the provisions of the local option law and its prohibition should also apply to the druggists in that county, and notice of such election, in conformity with the petitions and order of the court, was properly given, and in pursuance thereto the election was held, and resulted in a large majority of the ballots being cast in favor of the proposition in every voting precinct of the county; no special election was called for the city of Somerset, although precincts Nos. 1 and 2 cover the whole territory of the city and do not embrace any territory outside the limits thereof; previous elections had been held upon the same proposition in precincts Nos. 7, 8, 9 and 10 of the county within the three years preceding this election.
We will take up these grounds of contest seriatim:
First, it was not necessary that the names of all the petitioners should have been signed to the same petition. All that the statute requires is that a written petition, signed by a number of legal voters in each precinct of the county to be affected, equal to 25 per cent. of the votes cast in each of such precincts at the last preceding general election, shall be presented to the county judge. "To petition," in the meaning of the statute, is simply to make a request of the court in writing, and the gist of the statute, so far as this requirement is concerned, is that before the county shall be subjected to the expense of such an election it should be demonstrated that at least 25 per cent. of the voters of the county desire such an election to be held; and in this case this object was accomplished quite as well when the names of the petitioners appeared on twenty-six different papers of the same import as if they had all been attached to a single petition.
Second ground of contest relied on is that the city of Somerset should not be controlled in this matter by the vote of the county outside of the territorial limits thereof, as it is a distinct corporate body, having a separate government from the remainder of the county and subject to burdens and responsibilities which precincts outside the city do not share.
The admirable argument of counsel on this point might have been profitably listened to by the legislature at the time it was considering this statute, but as it is the duty of this court to interpret laws, and not to legislate, we can find no justification for this conclusion.
Section 2554, Ky. Stats., the first section of the local option act of March 10, 1895, provides that such an election may be held in the county, city, town, district or precinct, as the case may be, and this question received careful consideration at the...
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