Parrott v. Belcher

LAMBERT, Justice. The city of Cumberland in Harlan County is a fourth class city. As a result of a citywide local option election held on July 17, 1992, a majority of the votes were cast against prohibition, but a majority in the City Hall Precinct C103B east their votes otherwise. Within a few months after the vote, a new petition was filed which sought another local option election for only the City Hall Precinct. This Court granted transfer of this appeal from the judgment of the Harlan Circuit Court whereby appellees were granted summary judgment and appellant’s complaint dismissed. We are called upon to construe various statutes relating to local option elections and to decide whether the three-year moratorium provided for in KRS 242.030(5) applies to a precinct located within a fourth class city which has voted to abolish prohibition. [635] Appellant brought this action for injunctive relief against the county judge/executive and others, but the trial court denied the relief sought holding that: because a precinct (when referred to in Section 61 of the Kentucky Constitution and KRS Chapter 242) is not the same territory as a City, the Court concludes, as a matter of law, that said precinct is entitled to hold a local option election on March 23, 1993, at a time within three years of the July, 1992 city wide local option election. The heart of appellant’s argument is that KRS 242.125(1) renders a precinct election within a wet city subject to the provisions of Chapter 242 and in particular, that portion which prevents the conduct of elections more often than every three years. He reaches this conclusion by implication arising from the failure of the Legislature to specifically say that the precinct is not the “same territory” as the city when it had earlier said that the city was not the “same territory” as the county. He relies on Andrus v. Glover Construction Company, 446 U.S. 608, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980), for the proposition that when a statute enumerates exceptions to a general prohibition, additional exceptions are not to be implied absent a contrary legislative intent. By failure of the Legislature to specifically except precincts within a wet city from the three-year rule, appellant concludes that the rule applies. Appellees respond that the three-year prohibition contained in KRS 342.030(5) applies only to the “same territory” and that a precinct within a city of the fourth class is not the same territory as that in which the citywide election was held. They rely on Section 61 of the Constitution of Kentucky, KRS 242.010(5), KRS 242.030(5), and KRS 242.125(1) as establishing that counties, cities, districts and precincts are separate and distinct political subdivisions for purposes of local option and that neither is the same territory as the other. This Court has struggled to construe these confusing and perhaps ambiguous statutes. The point of beginning is KRS 242.010(5) whereby the word “territory” is defined to mean county, city, district or precinct. From there we turn to KRS 242.030(5), a provision which prohibits holding local option elections in the “same territory” more often than once every three years. The final statute is KRS 242.125(1) which is as follows: (1) In any county in which the provisions of KRS 242.220 to 242.430 are applicable by reason of an election for the entire county having heretofore resulted in favor of prohibition, an election may be held in any city of the first four (4) classes in such county to take the sense of the people of the city as to the discontinuance of prohibition in the city. For this purpose the election in the city shall not be deemed to be an election in the “same territory” as that in which the county-wide election was held within the meaning of Sub-section (5) of KRS 242.030. If, at the election for a city, the majority of the votes cast are against prohibition, the vote makes KRS 242.220 to 242.430 inapplicable to the entire city, but this does not prevent an election from thereafter being held in any precinct of the city, subject to the provisions of Chapter 242, to take the sense of the people of the precinct as to the application of KRS 242.220 to 242.430 in the precinct. From KRS 242.010(5) and KRS 242.030(5), it is clear that local option elections in the same territory may not be held more often than eveiy three years. As such, the question is whether KRS 242.125(1) expressly or impliedly treats a precinct within a fourth class city as the “same territory” as the entire city, or whether what appears to be plain statutory language is controlling. The final sentence of KRS 242.125(1) (quoted above) appears to grant a single precinct the right to hold a subsequent election without regard to the three-year moratorium in recognition that it is not the same territory as the city. With apology for the repetition, the statute says This [the vote against prohibition] does not prevent an election from thereafter being held in any precinct of the city, subject to the provisions of KRS Chapter 242, to take the sense of the people of the precinct as to application of [the prohibition enforcement statutes] in the precinct. [636] The foregoing language is too compelling to ignore. Avoidance of its meaning would require resort to rules of construction or the embrace of inexplicit references as decisive. When this is coupled with the manifest distinction between the political subdivisions set forth in KRS 242.030(5), each being separate territories, we have no doubt as to the legislative intent in this regard. In KRS 242.125(1), the Legislature intended to permit a city of one of the first four classes to separately determine whether it would be bound by prevailing county-wide prohibition; but it also authorized the voters of a single precinct within that city to determine whether they should be bound by the city-wide vote or whether they should have prohibition .in the precinct, all without regard to the three-year moratorium. We have carefully examined this Court’s decision in Howard v. Salyer, Ky., 695 S.W.2d 420 (1985), which upheld the constitutionality of the statutes at issue here and retained the county unit rule, but acknowledged the existence of an exception for cities of the first four classes. By this decision we break no new ground, but merely confirm the widely acknowledged proposition that a precinct within a fourth class city is not the same territory as the city. This is consistent with our decision with respect to cities located in dry counties, Long v. Smith, 281 Ky. 512, 136 S.W.2d 789 (1940), precincts within wet counties, Fuson v. Howard, 305 Ky. 843, 205 S.W.2d 1018 (1947), and precincts within wet magisterial districts, Ball v. Hill, Ky., 240 S.W.2d 628 (1951). For the foregoing reasons, the judgment of the Harlan Circuit Court is affirmed. REYNOLDS, STUMBO and WINTERSHEIMER, JJ., concur. STEPHENS, C.J., files a separate dissenting opinion in which LEIBSON and SPAIN, JJ., join.