Request By:
Mr. Bremer Ehrler, Chairman
Jefferson County Board of Elections
Louisville Gardens
6th & Muhammad Ali Boulevard
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Suzanne Guss, Assistant Attorney General
This is in response to your request for an opinion of this Office regarding the local option status of consolidated precincts. In your request, you present the following fact situation:
"In Jefferson County, there are a small number of precincts in which the sale of alcoholic beverages is presently prohibited ('dry' precincts) . We are in the process of consolidating some precincts and altering one or more boundaries of others to allow for a more equitable distribution of voters per precinct. "
In order to assist your decision on boundary adjustments, you ask the following question:
"If two precincts - one 'wet' and one 'dry' - are merged into one for voting purposes, what, if anything, happens ('wet, 'dry' ) of the new precinct as a whole?"
In
Rich-Hills Catering Co., Inc. v. Slattery, Ky., 448 S.W.2d 379 (1969), the Court held that where a legally "dry" Madison County territory is annexed to a legally "wet" city, the annexed territory remains dry and retains the local option status that existed prior to annexation. The basis of the Court's conclusion was KRS 242.200. Upon searching the local option law, the Court found that the only method provided by the Legislature for altering the local option status of a territory was an election, as provided by KRS 242.200:
"We conclude that, when the people of any county, city, district or precinct have voted in favor of prohibition, a 'dry' status has been created that attaches to the involved territory and that status is unalterable unless it is changed by a vote of the people as provided by KRS 242.200. We reach this conclusion because the method provided by 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."
448 S.W.2d at 383.
In 1980 the General Assembly amended KRS 242.190 by addition of the following subsection:
"(2) Upon 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 . . . ."
KRS 242.190(2) would modify the holding in Rich-Hills Catering Co., Inc., supra in a situation where a city annexes local option territory. See OAG 83-171, OAG 82-153, and OAG 81-399. However, in the situation described by your letter two county precincts are to be merged. Thus, KRS 242.190 is inapplicable. If KRS 242.190(2) is not applicable, KRS 242.200 remains the exclusive method the Legislature has provided to change the status of a local option territory.
Rich-Hills Catering Co., Inc. v. Slattery, Ky., 448 S.W.2d at 381. Both the dry territory and wet territory retain their separate local option status, until a subsequent election alters the status of the newly-formed precinct as a whole. See KRS 242.125 and KRS 242.125.
Prater v. Commonwealth, 11 KY.Op. 578, 3 Ky. Law Rpts 695 (1882) is precisely on point. In Prater, the defendant was convicted of selling alcoholic beverages in a dry territory.
The voters of magisterial district No. 2 had voted in favor of prohibition within the district. A new magisterial district, No. 9, was created out of a portion of old district No. 1, which was wet, and a portion of district No. 2. Prater was convicted of unlawfully selling alcoholic beverages in district No. 9. The Court held that the indictment was defective because it failed to state whether the sale occurred in an area which had been part of old district No. 2. The Court stated:
"It surely could not have been contemplated that the county court could defeat the will of the people in a vote for or against the measure by changing the boundary of the territory in which the vote had been taken in the creation of an additional voting precinct or magisterial district. No such power is vested in that tribunal by the act authorizing the vote, and the geographical boundary designated as the district still remains, although portions of it may be annexed or embraced within the civil districts as laid off for county purposes.
Such a ruling would enable the county court in every instance to defeat the popular will by a mere change of the district. The right to determine whether spirituous liquors should be sold within this boundary was taken from the county court by this local option law and vested within the voters in the boundary. They alone have the right to permit its sale by a subsequent vote, if prohibited in the first instance, and the county court has no power over it. But the indictment charges a sale in district No. 9, without alleging or specifying the boundary in which it was sold so as to enable the court to know that a portion of civil district No. 9 was within the district No. 2 in which the vote was taken; prima facie, the parties had the right to sell if licensed by the county court in district No. 9. For this reason the judgment is reversed and cause remanded for further proceedings."
11 Ky. Op. 578-579.
In
Reeves v. Zirkle, Ky., 331 S.W.2d 723 (1959), the Court stated:
"If, by a change of precinct boundaries, territory with one local option status is placed in a precinct which has a different local option status, it may well be that the change of boundaries should not be permitted to effect a change of the local option status of the territory so moved. See Annotation, 23 A.L.R.2d 863."
331 S.W.2d at 724.
It is the opinion of this Office that a change in precinct boundaries by a merger or consolidation of "wet" and "dry" precincts within Jefferson County does not alter the local option status or nullify the local option election previously held in each precinct.
You have also asked the following question:
"If the response to the first question is that each portion retains its original status until and unless a local option election is held in the combined precinct, does the same hold true for a precinct which is created by adding a portion of a precinct having one status to a precinct (or portion thereof) having the opposite status?"
The answer is "yes." Whether two precincts are merged to form a new one or whether a portion of one precinct is annexed to a different precinct, the analysis remains the same. The alteration of precinct boundaries for voting purposes does not change the local option status of the territory affected.
We trust this information has satisfactorily answered your inquiry. If you have any additional questions, please contact us.