Commonwealth v. Ledford

110 S.W. 889, 129 Ky. 190, 1908 Ky. LEXIS 154

• Court: Court of Appeals of Kentucky
• Decided: May 28, 1908
• Status: Published

Opinion

Opinion op the Court by

Chief Justice O’Rear—

Affirming.

The county court is alone authorized to grant merchants licenses to retail liquors in quantities not less than a quart, and not to be drunk on the premises. Section -4224, Ky. Stats., 1903. The procedure required by the statute is that the applicant shall first post notices of his intention to apply for the license for so many days before the application is heard. Then the residents of the neighborhood may protest against the license being granted, the neighborhood to be defined by the court. If a majority of the legal voters protest, the license must be refused. No.r shall a license be granted to a person of bad character, or who keeps a disorderly house. However, if the applicant is a person of good character, keeps an orderly house, has complied as to posting notices of his application, and a majority of the voters of the neighborhood do not protest, the county court has but little discretion left as to whether the license shall be granted. Hodges v. Metcalfe County Court, 116 Ky. 524, 76 S. W. 381, 25 Ky. Law Rep. 772. But in Christian county the county court exacted as a condition precedent to the granting of a merchant’s license to Ledford that he enter into bond with the Commonwealth in the penal sum of $500, conditioned that he would faithfully observe the law with respect to conducting his business; and appellee, Ledford, with his surety, entered into such covenant. This suit was brought upon the bond by the Commonwealth, charging its breach in that Ledford sold to inebriates, to minors, and in quantities less than a quart, as well as in other quantities to he drunk on the premises, and that he kept a disorderly house. A recovery of the penal sum named in the bond was asked for. The circuit court sustained a demurrer to the petition. We think properly so.

It is conceded by the State’s attorney that there is no provision of the statute authorizing the taking of such bond, unless, it is said, the statute applicable to tavern keepers should be held to apply. While in olden times a tavern keeper may have been deemed a retailer of liquor or a merchant retailer, we think the Legislature of this State, by naming them separately, and providing different conditions as to each, intended that they should not be any longer regarded as synonymous employments. And as bond is expressly re quired of tavern keepers, but not of merchants, the county court was without authority to exact or to receive such bonds of the latter. They are without consideration besides. It amounts to this: A is concededly entitled to have a certain license granted to him upon his paying the fees; but in addition he is required to execute a cpvenant not to violate the law. The requiring the covenant was as much unauthorized as if, in addition to.the toll legally exactable by a ferryman, he should also require a bond of the traveler to keep the peace. In neither event is it a voluntary bond. And not being such, it is not good as a common-law bond. Perry v. Hensley, 14 B. Mon. 474, 61 Am. Dec. 164.

Judgment affirmed.