Smith, etc. v. Patton, etc.

of this court to interpret laws, and not to legislate, we can find no justification for this conclusion.

Section 2554, Ky. Stats., the first section of the local option act of March 10, 1895, provides that such an election may be held in the county, city, town, district or precinct, as the case may be, and this question received careful consideration at the hands of this court in Cole v. Com., 101 Ky., 151; in which it was held that under the law a county has the right to vote on this question as a whole, but that "if simultaneously or subsequently a smaller and independent sub-division of the county, upon which is also conferred the right to exercise its choice, does exercise it, subject to the limitations provided by the statute, with a different result, the territory of the smaller division is excepted from the dominion of the larger, if it chooses so to act."

As to the third ground of contest relied on, that four precincts within the county which voted at this election had held similar elections within three years prior thereto, it seems to us that this state of case is recognized and clearly provided for in section 61 of the Constitution and section 2560 of the Ky. Stats., and that a vote in one of the sub-divisions of the county does not deprive the whole of the county of the right given by the Constitution to take a vote on this question; but that the result of such votes shall not interfere with or repeal any law in force relating to the sale or gift of such liquors. (See Stamper v. Com., 102 Ky., 33).

The fourth objection is based upon the ground that the question propounded to the voter did not submit to him

Smith, etc. v. Patton, etc.

the proposition that the result of the election was intended to apply to druggists. Section 2558, Ky. Stats.

says:

"Nor shall the provisions of this act apply to druggists, unless it be written in the petition, notice and order for the election that the provisions of this law and prohibition shall apply to druggists."

All these requirements of the statute were complied with, and there is no fraud alleged or fact proven which tends to show that the voters were deceived or in ignorance as to the provisions of the act in regard to which they were voting. The notice provided for and afforded convenient and full information as to the scope and purposes of the election, and the voters must be presumed to have known what they were voting for. (See Gayle v. Owen County Court, 83 Ky., 7.

The last ground upon which appellants rest their contest is, first, did the court have jurisdiction at a called term to receive and file the petition for the election, and, second, whether at the regular term of the county court held on the following Monday, after the petition had been received and filed at the called term on Saturday, it had jurisdiction to order the election..

It is insisted by counsel that in Section 2554, Ky. Stats. the first section of the local option statute provides that the order directing the election to be held must be made at the next regular term thereof after receiving the petition; that the word "next"is not synonymous with the word "first," and shows an intention that all proceedings relating to this question should be had at regular terms

Smith, etc. v. Patton, etc.

of the court, and not at called terms, and relies, to support his contention, upon the cases of Doores v. Varnon, 94 Ky., 577; 99 Ky., 11; Wilson v. Hines, 18 Ky. L. R., 233, and Cress v. Com., 18 Ky. L. R., 633.

In Doores v. Varnon the petition of voters and taxpayers was presented to the county judge and filed on the same day on which the order was entered directing the sheriff to open the polls to take the vote, and the court held in that case that the act authorizing the tax required the order for the election to be made at a regular term succeeding that at which the petition was filed, and was mandatory.

In Webb v. Smith the petition was lodged in the clerk's office, no record being made of the filing of same until the entry of the order for the election, and the court held in that case that "The petition must be filed at one term and the order made at a subsequent term."

Both of these cases arose upon the construction of the provisions of the statute authorizing the levy of taxes under the provisions of the common school law, and as the language in that statute is almost identical with the language in the one under consideration, the construction given in one under the one statute would be equally applicable to the other. And this view was fully concurred in in Wilson v. Hines, which was a contest growing out of the construction of the local option law. In that case the petition was handed to the county judge on Sunday, the day before the first day of the April term of the county court, and the order directing the election to be held was inade the next day, no record being made of the filing

Smith, etc. v. Patton, etc.

of the petition until the day when the order for the election was entered; and the same state of facts obtained in Cress v. Com., supra.

In the foregoing cases the point upon which the decision of the court turned was that there must be such action taken by the court at the time the petition is filed in the county court as would make it a part of the records of the court, and that this must be done at a term previous to that at which the order of election is entered; holding that the words "received by the judge" meant received by the county court when in session.

The question as to whether the petition could be received and noted of record at a called term, was not considered or passed upon in either of the cases cited. And while the speculation indulged in in Doores v. Varnon, as to the probable motive that induced the legislature to require a postponement of the entry of the order of election to a subsequent regular term from that at which the petition was received and filed, tends to support the contention of appellant as to the proper construction to be given to the statute, it is well to remember that it is the decision, or judgment rendered in the case, and not the opinion of the court, which makes the precedent. (See Black on Interpretation of Laws. p. 384).

Section 1058 Ky. Stats. provides that "special terms of the county court may be held at any time for the transaction of any business, except the probating of a will or the granting of tavern, liquor or druggists' license; and the court may adjourn from time to time until the business. is disposed of, but no adjournment shall be to a time be

Smith, etc. v. Patton, etc.

yond the commencement of the next regular term." And it would be doing violence to the plain letter of this provision of the statute to hold that the county court did not have jurisdiction to receive and file the petition for such an election at a called term, as this statute gives it the power to perform any act within the scope of its jurisdiction at such terms, except those acts which the statute expressly requires should be performed at a regular term.

In Com. v. Graves & Clary, 18 B. M., 34, the court said: "The only person authorized to determine as to the necessity of a special term is the county judge, and he has the right to call such terms when in his judgment it is necessary for the immediate action of the court in regard, not only to the estate of the deceased persons, but any other business over which the court has jurisdiction."

The facts of the case at bar clearly distinguish it from those cited in the very particular in which the judgment in those cases turned. The petition here was presented filed and made a part of the record at a called term of the court, and this was done previously to the next regular term thereafter at which the order of election was made.

There is no suggestion that the names signed to the petition were not those of legal voters of the county or any allegation of irregularity in the election itself; and as there has been a literal compliance by the petitioners with the procedure required by the provisions of the statute for holding such elections, the judgment must be affirmed.

Chief Justice Lewis and Judges White and Guffy dissented from this opinion.