
    Cases 57, 58, 59 — INDICTMENTS
    Dec 12.
    Anderson v. Commonwealth. Sparks v. Commonwealth. Same v. Same.
    APPEAL PROM CHRISTIAN CIRCUIT COURT.
    APPEALS PROM JESSAMINE CIRCUIT COURT.
    1. The local-option LAW — “An act to regulate the sale of spirituous, vinous, and malt liquors in this commonwealth,” approved January-26, 1874 — by an equal division of the court in these cases, is treated as constitutional.
    See in opinion a statement of the questions on which the opinion of the court is unanimous, and on which it is equally divided.
    2. The sale by retail op intoxicating liquors may he constitutionally regulated, and licenses to carry on the retail traffic may be refused altogether.
    3. The question op license or no license is one properly of local police, and may be constitutionally left to the decision of county courts, the municipal authorities of towns and cities; or the qualified voters of a city, town, or civil district.
    H. A. PHELPS & SON por appellant Andjjrson.
    The act of January 26, 1874, known as the local-option law, neither commands what is right nor does it prohibit what is wrong, nor is it permanent, uniform, or universal, nor does its obligatory force depend upon the action of the supreme power of the state; it is unconstitutional. (Cooley’s Con. Lim., 3d ed., pages 116-125.)
    It is also contended that said act, if constitutional, does not authorize persons who are not residents of the city of Hopkinsville to vote, because it says in a civil district, town, or city, meaning either the one or the other, that is a civil district, in the county which does not embrace within its boundary a town or city. A different construction would enable persons who do not reside in the city of Hopkinsville, and who pay no city taxes, to cut off the revenues of said city, which would be tantamount to voting a tax upon the citizens of said city.
    
      BRECKINRIDGE & SHELBY and HUSTON & MULLIGAN roe APPELLANT SPARKS.
    1. The indictments in these cases under the local-option law are not sufficient: 1. Because they do not state the time of the election, nor the necessary facts required by the act as preliminary to a lawful election; and 2. Because the certificate required is not sufficiently stated.
    The allegation of an election “duly held,” and a “certificate by the proper examining board entered upon the records of the Jessamine County Court as provided bylaw,” are too general; legal conclusions, not facts.
    2. The omission of the year in the indictment was fatal.
    3. The district in which the vote was taken being changed, and many other persons added to it after the vote was taken and before the selling named in the indictments, such selling was not in the same district in which the vote was taken, and therefore such selling was not in violation of said act.
    The vote in. a specified boundary fixed the law for that boundary and none other.
    4. Appellant at the time of the selling lived and sold liquor in the limits of the town of Nicholasville, an incorporated town invested by its charter with powers of police and local regulation, embracing the exclusive power of licensing the retailing of all spirituous liquors. This was a good defense to the indictments.
    5. The local-option law, “an act to regulate the sale of spirituous liquors,” etc., is not an act to prohibit, in a certain mode, any sale whatever, and therefore the object of the act is not expressed in the title, and it is repugnant to section 37, article 2 of the constitution of this state.
    6. The act in question is not a law until the vote is given; does not take effect until the vote is given.
    The vote upon ¿Inexpediency of a law is not such a future event as upon which a statute can be made to take effect. The decision as to the expediency of laws, by the constitution, is vested in the legislature.
    7. The legislature did not intend this act to take effect until it had other sanctions than that of the legislature itself ;• its operation is not general and uniform. Such legislative enactments are unconstitutional. (Barto v. Himrod, 8 N. Y. (4 Selden); Parker v. Com., 6 Penn. St. 507; Rice v. Poster, 4 Harrington (Del.) 479; Greenbuck v. State, 5 Iowa, 495; Ex parte Wall, 48 Cal.; Parker v. Com., 6 Penn. St. 12.)
    THOS. E. MOSS, ATTORNEY-GENERAL, ROE APPELLEE, IN ORAL ARGUMENT, CITED:
    Cooley’s Con. Lim. 583 : 5 Harr. 504; 36 N. J. 72; Locke’s Appeal, 72; Penn. St. 491; 7 Bac. Abr. 43, 44; Com. v. Bennett, 108
    
      Mass. 27; Com. v. Blakington, 24 Pick. 252; Bosley v. Mattingly, 14 B. Mon. 72.
    HUNTER WOOD, commonwealth’s attorney second judicial DISTRICT, EOR APPELLEE IN ÁNDERSON V. COMMONWEALTH.
    1. The corporate authorities of the city of Hopkinsville did not, by the discretionary power conferred upon them of licensing the sale of’ liquors, acquire any vested right or perpetual authority to license the selling of liquors within the city limits, or to the revenue derivable therefrom.
    2. The local-option law authorized the question to be submitted to the voters of a civil district including a town, or to the voters of a town or city, excluding the voters of the civil district residing outside of the corporate limits.
    3. The act in question is not a delegation of legislative power, but a conditional law, one dependent on the happening of an uncertain future event, and is not repugnant to section 1, article 2, constitution of this state. (Cargo of Brig Aurora v. United States, 7 Cranch, 382; Robinson v. Bidwell, 22 Cal, 379.) And there is no reason why the future event may not be a popular election. (People v. Collins, 3 Mich. 359; Locke’s Appeal, 72; Penn. St. 498; Dally v. Wolf & Palmer, 14 Iowa, 229; State v. Parker, 26 Yt. 369; Bull v. Read, 13 Grattan, 78; Marshall v. Donovan, 10 Bush, 694; Slack v. M. & L. R. R. Co. 13 B. Mon. 23, 25; 12 Am. Law Reg. 36 ; Grouch v. State, 42 Ind. 547.)
    4. As a police regulation the legislature might delegate the power to the civil district, town, or county, to determine by popular vote, whether licenses should be granted or not. (Metropolitan Bank of Excise v. Barrie, 34 N. Y. 657; Bancroft v. Dumas, 21 Yt. 457; 12 Am. Law Reg. (New Jersey case) 36; State v. Noyes, 30 N. H. 292; People v. Reynolds, 10 Iowa (5 Gilman); Commonwealth v. Blakington, 24 Pick. 352; Com. v. Bennett, 108 Mass. 29; State v. Clarke, 28 N. H. 181; Ex parte Smith v. Keating, 38 Cal. 720; Clark v. Rochester, 28 N. Y. 605.)
   CHIEF JUSTICE LINDSAY

delivered the'opinion oethe court.

These cases bring up for determination the question of the constitutionality of the act of the general assembly, approved January 26, 1874, entitled “An act to regulate the sale of spirituous, vinous, and malt liquors in the commonwealth/’ commonly known as the “local-option law.”

After mature deliberation and a most thorough and careful examination of all the authorities bearing on this subject, the members of the court find themselves unable to agree on some of the questions directly and necessarily connected with the main question in issue.

We unanimously hold that the sale by retail of intoxicating liquors may be constitutionally regulated; and that in localities where, in the opinion of the legislature or of its constitutionally organized agencies, the peace and good order of society so require, license to carry on the retail traffic may be refused altogether.

We also agree that the question of license or no license, is one properly of local police, and may be constitutionally left to the decision and discretion of the lawfully-created agencies representing and acting for the local public to be immediately affected by the retail liquor traffic, such as the county courts, and the municipal authorities of towns and cities. And further, that the legislature may create other agencies to determine this local question, and that it is no constitutional objection to the agencies created by the act under consideration that they are composed of the body of the qualified voters of the city, town, or civil district in which the necessary steps may be taken to test the sense of such voters on the subject of such retail traffic.

But Chief Justice Lindsay and Justice Elliott are of opinion that so much of the 6th section of the act as provides that the unlawful sale of liquors in cities, towns, and districts, in which the qualified voters have pronounced against license, shall be punished by different and greater penalties than are inflicted by the general laws on persons so selling in other portions of the state, and so much of the 7th section as makes the guilt or innocence of a physician who prescribes liquors to his patients depend on the vote of the people, are unconstitutional and void.

They are also of opinion that said provisions are so interwoven, and made material parts of the act, that they can not be rejected as void, and the remaining provisions upheld and enforced, without disregarding what seems to them to have been the 'manifest intention of the legislature. That is, that the act and all its various provisions should stand together and be enforced, outside and independent of the general legislation on the subject of the retail traffic in intoxicating liquors. For these reasons they are constrained to hold that the entire act should be declared invalid.

But Justices Pryor and Cofer are of opinion that said sections and all their provisions are properly and legitimately connected with and made parts of the act, and are not subject to the constitutional objections suggested by the Chief Justice and Justice Elliott.

It results therefore that the act must be treated as constitutional ; and as we perceive no available error in the proceedings in these cases in the lower courts, the judgments appealed from must be affirmed.  