Cooper v. Shelton

JUDGE GUFFY

DELIVERED TIIE OPINION OE THE COURT.

This appeal is prosecuted by Geo. B. Cooper, county clerk of Lincoln county, from a judgment of the Lincoln Circuit Court rendered in the case of Thos. S. Shelton against Geo. B. Cooper, clerk, etc.

The agreed facts in the case show that on the 26th of March, 1894, an election had been legally held in Stanford magisterial district as to whether spirituous, malt or vinous liquors should be sold, bartered, or loaned in said district, and that a majority of the votes cast at said election were cast against such sale, and that due return of same had been made to the proper office and the proper entry made on the county court order book. That after all this had been done the trustees, of Rowland, a town of the sixth class, in said magisterial district, assumed to license the appellee to keep a tavern and sell by retail spirituous, malt and vinous liquors in said town of Rowland, and that appellee presented what purports to be such license to the appellant and offered to pay the State tax of $150, and to execute bond and take the oath of a tavern-keeper, and demanded that the appellant issue to him State license. Appellant refused to issue any license or otherwise comply with appellee’s "demands. Appellee then instituted this action to procure a mandamus requiring appellant to, issue the license, and upon final hearing the court adjudged that the writ issue, and from that judgment this appeal is prosecuted.

It is insisted by appellee that the act providing for the *285government of towns of the sixth class gives to the trustees of such towns exclusive power over the questions of license to retail liquor, and that it repealed all other laws, including the local option law, as to such towns, and cites the case of Tabor v. Lander, 94 Ky., 237, in support of his contention. But that case is wholly unlike the case at bar.

In that case it appears that by vote under the.local option law,the sale of liquor had been prohibited in the Hawesville magisterial district, and that after such vote had been taken, the legislature, in 1888, had amended the charter of the town of Hawesville, and had given the town authorities power to license the sale of liquor. In 1890 another vote under the local option law was taken resulting in a majority vote against such sale. • The act of 1888 was intended, and necessarily had the effect, to repeal the local option law then in force in Hawesville, and it being a local act and containing no provision for its repeal by any vote to be thereafter taken, it remained unaffected by any vote taken under the general law in force at the time of the passage of said act.

The local option law now in force, and which has been in force for many years', with, perhaps, slight amendments, is contained in chapter 81 of the General Statutes, and seems to have been re-enacted 10th of March, 1894. It provides for the taking of a vote as to the question of the sale, etc. of liquor in any county, civil district or town, and if a majority of those voting vote against such sale, then no license can be lawfully issued authorizing the sale in such district or civil division. Such a vote having been taken'in the Stanford magisterial district, of which the town of Rowland is a part, and having resulted in a majority of votes against the saleof liquor,andthe returns having been made and certificates entered as required by law, no author*286ity could legally license the sale of spirituous liquors in said district. The exclusive authority given by the act providing for the government of towns of the sixth class to the trustees thereof only authorizes the trustees to license the sale of spirituous, malt or vinous liquors in such towns when the same can be done without violating existing law.

For the reasons given the judgment of the court below is reversed and cause remanded with directions to set aside the order awarding the mandamus, and to dismiss appellee’s motion.