Wolfe County Liquor Dispensary Ass'n v. Ingram

• Decision Date: 08 February 1938
• Citation: 113 S.W.2d 839,272 Ky. 38
• Parties: WOLFE COUNTY LIQUOR DISPENSARY ASS'N v. INGRAM, County Judge, et al. BUCHANAN v. STAMPER, Sheriff, et al.
• Court: Kentucky Court of Appeals

113 S.W.2d 839

272 Ky. 38

WOLFE COUNTY LIQUOR DISPENSARY ASS'N v. INGRAM, County Judge, et al.

BUCHANAN v. STAMPER, Sheriff, et al.

Court of Appeals of Kentucky

February 8, 1938

Appeal from Circuit Court, Wolfe County.

Action by the Wolfe County Liquor Dispensary Association, etc against J. B. Ingram, County Judge, and others, to enjoin the holding of a local option election in Wolfe County, Ky. A restraining order was refused and plaintiffs appeal. After the election was held, Roy Buchanan filed a petition against F. J. Stamper, Sheriff, and others, contesting the election. The petition was dismissed, and petitioner appeals, the two appeals being considered together.

Reversed with directions.

Leebern Allen, of Campton, for appellants.

H. H Ramey and E. R. Cooper, both of Salyersville, for appellees.

BAIRD Justice.

These two appeals by agreement are consolidated and are to be considered together.

The action of the Wolfe County Liquor Dispensary Association, etc., v. J. B. Ingram, County Judge, et al., was instituted for one purpose alone. That was to obtain an injunction enjoining the holding of the local option election in Wolfe county, Ky. called for May 4, 1937. The temporary restraining order sought was refused by the judge of the court. The appeal is from that order, which is in the following language:

"The plaintiffs having filed a petition asking for temporary restraining order, *** and produced in court the affidavits filed herein, and the court after reading the record in this case denies the plaintiffs a temporary restraining order.

"*** to the ruling of the court in denying them a restraining order, enjoining and restraining the defendants and each of them from holding an election called for the 4th day of May, 1937, the plaintiffs object and except and pray an appeal to the Court of Appeals which is granted."

This order is not final. This court will review only such orders and judgment of the trial court that are final. Denham v. Town of Wallins, 234 Ky. 626, 28 S.W.2d 965; Happy Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23, and citations referred to in the Denham Case, supra.

Aside from that, the question involved in the case is now moot. The local option election was held in Wolfe county on the 4th day of May, 1937, resulting in 1,472 votes being case in favor of local option, and 142 against it. The vote in favor of local option was decisive and over-whelming.

Soon after the result was certified, as authorized by law, appellant, Roy Buchanan, filed his petition contesting the election. On final hearing his petition was dismissed. He appeals.

He predicates his right of reversal on the following grounds, insisting that on either of those grounds the judgment of the court should be reversed: "1. Because the trial judge refused to vacate the bench.

"2. Because the election was not properly advertised.

"3. Because the ballots used in the election were not properly prepared."

Having reached the conclusion that the case will have to be reversed, because the election was not properly advertised, there is no cause to consider either of the other grounds.

The facts pertaining to the pivotal point in the case are as follows: "It is admitted that in the month of March 1937, more than two weeks before the 4th day of May, 1937, the defendant, F. J. Stamper, as sheriff of said county, duly advertised the holding of the local option election on May 4th, 1937, by written and printed handbills posted at not less than five conspicuous places in each precinct in Wolfe County, as required by section 2554c-5, Baldwin's Edition of 1936, Carroll's Kentucky Statutes, but that said sheriff did not publish a copy of said order in any newspaper published in Wolfe County, as said section requires."

The law controlling the holding of a local option election as to the proper publication of the order calling it is direct, clear, and mandatory. There is nothing indefinite, uncertain, or obscure.

Section 2554c-5 of the Statute provides in part: "Within five days after said order of the county court calling an election is made, it shall be the duty of the county clerk to give to the sheriff of the county a certified copy of the same. It shall then be the duty of the said sheriff to have same published in some weekly or daily newspaper published in the county for at least two weeks before the election, and also to advertise same by written or printed handbills posted at not less than five conspicuous places in each precinct of the county for the same length of time when the election is held for the entire county. *** In case there is no daily or weekly newspaper published in the county, or the proprietor of such newspaper refuses to publish said advertisement, the printed or written handbills posted as herein provided for shall be sufficient. ***"

It is stipulated that the election was advertised, as the law directs, before May 4, 1937, the day set apart by the order of court for that purpose at five conspicuous places in each of the voting precincts, as provided by the above section of the statute; and that no publication was made by the sheriff of the certified copy of the order of the county court in any newspaper in Wolfe county, as the election law required. Where a statute is plain, direct, and commanding, as this statute, can it be ignored, without invalidating the election?

Appellants claim that the law as to the publication of the certified order in a newspaper in Wolfe county, at least two weeks before May 4th, was omitted, (1) not because a weekly newspaper was not published in the county at least two weeks before the date set for the...