Request By:
Hon. Robert M. Kirtley
Daviess County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 4, in which you seek an opinion concerning the "wet" versus "dry" status of property annexed into the City of Owensboro. As background you present the following facts:
"On October 3, 1981, a "wet-dry" election, called pursuant to the provisions of KRS Chapter 242, was conducted in the South Seven Hills Precinct of Daviess County. The election results were 70 in favor of wet and 173 in favor of dry. Pursuant to the election results, the Daviess County Clerk's records reflect that all the territory within the South Seven Hills Precinct was annexed into the City of Owensboro. Mike Libs has advised me that the property so annexed will now be located in City Precinct No. 19, which for a number of years has been and still is wet. The City has 46 precincts, some of which are wet and some are dry. "
As you indicate, the case of
Rich-Hills Catering Co., Inc. v. Slattery, Ky., 448 S.W.2d 379 (1970), held in effect that legally "dry" county territory annexed to a legally "wet" city remains "dry, " subject to the local option status that existed in the territory prior to annexation. The basis of this holding was the conclusion by the Court that after searching the local option law, the only method found for the discontinuance of prohibition was under KRS 242.200 which would result from an election on the question. The Court further said, and we quote:
"We reach this conclusion because the method provided under KRS 242.200 is the exclusive method our Legislature has provided to change the status of a territory that has voted in favor of prohibition."
The decision in the above case was of course rendered in 1970. In the 1980 General Assembly, KRS 242.190 was amended by the addition of subsection (2). However, we will quote the statute in its entirety, which reads as follows:
"(1) When a majority of the votes cast at a local option election are in favor of prohibition in the territory, prohibition shall be in force and effect at the expiration of sixty (60) days from the date of the entry of the certificate of the county board of election commissioners in the order book of the county judge/executive.
(2) Upon the annexation of any local option territory by a city, either before July 15, 1980, or subsequent thereto, the annexed territory shall assume the same local option status as the local option status of the annexing city. Nothing in this section shall impair the right of any precinct in the annexed territory to determine its own status with respect to the legal sales of alcoholic beverages in accordance with the provisions of KRS Chapter 242. (Emphasis added.)
The above statute would obviously modify the holding in the Slattery case, particularly in view of the conclusion reached therein to the effect that the legislature had provided no method of changing the status of a territory other than by an election, as provided in KRS 242.200.
It is true that the 1980 amendment to KRS 242.190 does not take into consideration the fact that a city may have mixed precincts, some of which are "wet" and some of which are "dry. " Nevertheless, we are of the opinion that where the annexed territory is incorporated in and made a part of a "wet" precinct within the city, it will assume the status of the "wet" precinct; however, it is admittedly a question subject to litigation.