Request By:
Representative Phillip E. King
c/o Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James S. Goldberg, Assistant Attorney General
This letter is in response to your correspondence of February 10, 1977, in which you have asked this Office for an opinion as to whether there would be any constitutional ramifications if the legislature enacted in KRS Chapter 242 a provision which would provide that an annexed territory automatically assumes the status of the territory to which it becomes annexed.
In that regard, I would refer you to § 61 of the Kentucky Constitution which states:
"The general assembly shall, by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or repeal any law in force relating to the sale or gift of such liquors. All elections on this question may be held on a day other than the regular election days."
Under § 61, taking the sense of the people is interpreted to mean by an election.
"Pursuant to this constitutional mandate the Kentucky General Assembly enacted KRS, Chapter 242, ordinarily referred to as the Local Option Law, which provides the means whereby the sense of the people of any county, city, district or precinct may be taken as to whether spirituous, vinous, or malt liquors can be sold therein. This Act sets forth election procedures and guidelines to be observed in holding a Local Option election. The obvious purpose of this Act is to permit the people living in the mentioned political subdivisions to determine for themselves whether the sale of alcoholic beverages should be permitted within that territory. "
Rich-Hills Catering Company v. Slattery, Ky., 448 S.W.2d 379, 382, 383 (1969). Chapter 242 also contains various sections relating to the prohibition of certain acts concerning alcoholic beverages.
It is the position of this Office that, until § 61 of the Kentucky Constitution is deleted, the General Assembly cannot constitutionally change the present manner in which local option is exercised. Therefore, as it presently stands, a legislative enactment under KRS Chapter 242, providing that an annexed territory automatically assumes the status of the territory to which it becomes annexed, is unconstitutional under § 61 of the Kentucky Constitution.
I hope that this opinion will satisfactorily answer your question. If I can be of any further service, please do not hesitate to call upon me.