Request By:
Mr. Edsel T. Jones
Attorney at Law
68 South Main Street
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
Please excuse my delay in responding to your request for an opinion of this Office regarding the method and procedure of conducting local option elections. In your request you present the following fact situation:
A Kentucky county voted "dry" in a local option election; subsequent thereto a third class city located in the county conducted its own local option election and voted "wet" . Thereafter, the city annexed certain territory which was "dry" by virtue of having been located in the "dry" county.
Based upon this fact situation you have presented the following questions:
(1) Would a new city-wide election convert the dry annexed territory to wet territory if the city voted wet?
(2) May a precinct containing dry territory within the presently wet city hold a precinct election and convert itself from dry to wet?
(3) Where a third-class city is wet but a precinct located therein is dry or partly dry by virtue of a prior election or by annexation of dry county territory or by a change of precinct boundaries, may a city-wide election and a precinct election be conducted on the same day if no election has been held in either territory for more than three years?
It is initially observed that you are correct in your conclusion that the "dry" territory annexed to the "wet" remains "dry" until some action is taken to change its status. See
Rich-Hills Catering Company v. Slattery, Ky., 448 S.W.2d 379 (1969).
In regard to your first question, it is our opinion that a city-wide election would convert the "dry" annexed territory into "wet" territory if the city voted "wet" . KRS 242.125(1) provides that any city of the first four classes located in a "dry" county may conduct an independent local option election to determine its status on the "wet-dry" issue. If at the election for the city the majority of votes cast are against prohibition the provisions of KRS 242.220 to 242.430 are inapplicable to the entire city.
In answering this question we assume that the "dry" annexed territory does not constitute a precinct within itself. "Territory" is defined in KRS 242.010(5) as meaning a county, city, district or precinct. KRS 242.020 authorizes and provides for the circulation of a petition for a local option election in the territory to be affected. Based on these statutes the smallest area considered and defined as a territory is a precinct. No smaller political unit or area of a city or county can hold a local option election.
This is important because the holding of a city-wide election which produces a vote against prohibition does not prevent a local option election from thereafter being held in any precinct of the city. Notably if the "dry" annexed territory comprised a precinct within itself the city-wide election would not affect its status as "dry" territory. KRS 242.125(3).
In response to your second inquiry, we note that in
Reeves v. Zirkle, Ky., 331 S.W.2d 723, 724 (1960) the Kentucky Court of Appeals observed,
There is nothing in the words of the statute (KRS 242.020) to suggest a legislative intent that a precinct once established is irrevocably fixed in perpetuity as a local option voting unit.
A change of boundaries can therefore create a new voting unit -- a new precinct. In essence the annexation of the dry territory into the wet city precinct creates an enlarged precinct with both wet and dry areas. We believe that a precinct containing "wet" and "dry" territory, which is located within a "wet" city, may conduct a precinct election, and if the majority of voters are opposed to prohibition, convert the territory into an entirely "wet" precinct. KRS 242.215(1).
Finally it is our opinion that a city precinct local option election should not be conducted on the same day as a city-wide local option election. KRS 242.125(1) provides in pertinent part,
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 KRS Chapter 242, . . . . (Emphasis Ours).
While this statute infers that such elections should not be conducted simultaneously, it is also reasonable to assume from a practical standpoint that if a city voted in favor of prohibition a precinct vote against prohibition would have no affect. There are no provisions in Kentucky's alcoholic beverage statutes permitting a precinct within a city to vote "wet" when the remainder of the city is "dry" .
We hope that this satisfactorily answers your inquiries. If we can be of any further assistance please do not hesitate to contact us.