Thompson v. Com.

• Decision Date: 09 June 1898
• Parties: THOMPSON v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

46 S.W. 492

103 Ky. 685

THOMPSON v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 9, 1898

"To be officially reported."

On petition for rehearing. Granted and affirmed.

DU RELLE, J.

In the brief filed upon the submission of this case, the commonwealth's attorney urged that the judgment should not be disturbed, because the special act, if in force, had been violated, and, if not in force, the general law had been violated. This court held that the doctrine announced by Chief Justice Lewis in the Stamper Case, 42 S.W. 915, as applicable to divisions of the state in which a vote had been taken against the sale of liquor in such locality, was also applicable to localities where the legislature had prohibited such sale without submission to the popular vote, but that all local laws upon the subject were modified by the provisions of the general law as to procedure, amount of liquor permitted to be sold, and penalty; in other words that wherever a local law was in force, either through vote of the people or by legislative will, the sale of liquor by retail remained prohibited, not according to the terms of the local act, but as if a vote had been had in such locality against the sale of liquor, under the act of March 10, 1894. In localities where the sale of liquor had been theretofore permitted, it remained legal to sell it. In localities where its sale had been prohibited, it remained illegal to sell it but the procedure in prosecutions against offenders, the penalty to be recovered, the amount of liquor which might be legally sold, were governed by the act of March 10, 1894, as if a vote had been taken under that act, with the result of a majority against the sale of liquor in that locality. This was done for the purpose of securing that uniformity in character and administration of laws which, as counsel correctly contends, was the leading idea of those who framed the constitution. The effect, therefore, of the opinions in the Stamper Case and this case, is that the law embodied in sections 2557 and 2558 of the Kentucky Statutes is in force in all localities in which prohibitory laws were in force before the adoption of the act of March 10, 1894; and those sections will so remain in force until the people in such localities shall vote otherwise. This, we thought, was distinctly held in the two opinions. But counsel inquires "What, then, is the penalty under the Rockcastle county act, which did not go into force by a vote of the people? Is it from twenty to one hundred dollars, or from one hundred to two hundred dollars?" Counsel also inquires as to the effect to be given to special acts prohibiting the sale of spirituous liquors within a specified radius of specified churches or school houses. This question is not presented in the case, but, to avoid unnecessary litigation, we extend the opinion so far as to say that it logically follows that in such territory the sale of liquor remains prohibited, but in the manner, and to the extent, and subject to the procedure and penalties, provided in sections 2557 and 2558 of the Kentucky...