Request By:
Honorable Terry K. Sellars
Commissioner of Law
Lexington Fayette Urban County Government
The Municipal Building
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 15, in which you seek an opinion as to whether or not the election authorized pursuant to Section 2, subsection (3) of S.B. 293, enacted at the 1982 legislative session concerning the question of allowing limited Sunday sales of distilled spirits and wine by the drink beginning at 1:00 p.m., can be held on general election day.
Our response to your question would be in the affirmative for the reasons hereinafter stated.
Subsections (2) and (3) of Section 2 of S.B. 293, an Act relating to alcoholic beverage control, which creates a new section under Chapter 244 relating to alcoholic beverages, read as follows:
"(2) In any county containing an urban county government in which the sale of distilled spirits and wine is permitted under KRS Chapter 242, an election on the question of permitting the sale of distilled spirits and wine by the drink on Sunday may be held as provided in KRS 242.020 to 242.040 and 242.060 to 242.120. In any election, the form of the proposition shall be, 'Are you in favor of the sale of distilled spirits and wine by the drink between the hours of one p.m. and midnight on Sunday in (name of county)?'
(3) In any county containing an urban county government in which the sale of distilled spirits and wine is permitted under KRS Chapter 242, the legislative body of such urban county government may by resolution or ordinance submit to the electorate a proposal to permit the sale of distilled spirits and wine by the drink on Sunday from 1 p.m. until a closing hour specified in the proposal, by hotels, motels, convention centers, restaurants and commercial airports which are licensed for the retail sale of distilled spirits and wine by the drink and which have dining facilities with a minimum seating capacity of one hundred (100) people at tables and which receive at least fifty percent (50%) or more of gross annual income from dining facilities by the sale of food. The proposal to be submitted to the electorate shall be so framed that any voter who wishes to vote in favor of such limited Sunday sales of distilled spirits and wine by the drink may signify his approval by voting 'yes' and any voter who wishes to vote against such limited Sunday sales of distilled spirits and wine by the drink may do so by voting 'no.' Said election shall be held on a date stipulated by the legislative body and the cost of the election shall be borne by the urban county government. The proposal shall be published pursuant to KRS Chapter 424 and shall also be advertised by written or printed handbills posted at not less than five (5) conspicuous places in each precinct of the county for two (2) weeks before the election. The general election laws, including penalties for violations, shall apply to the election, except where those laws are inconsistent with the provisions of this section. Any such proposal submitted to the electorate shall be effective immediately if a majority of those voting on the proposal shall vote 'yes.'" (Emphasis added.)
Section 61 of the Kentucky Constitution reads as follows:
"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 to 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." (Emphasis added.)
Referring initially to the case of
Ginsburg v. Giles, 254 Ky. 720, 72 S.W.2d 438 (1934), we find the Court declaring there are only four types of election that may be held on a day other than the November election. More specifically, the Court said:
"The sole question presented is whether the calling of the election directed in the ordinance is within the inhibition of section 148 of the Constitution. This section has often been presented for construction. We have uniformly held it must be read and construed with section 147 of the Constitution.
An 'election' is universally defined as being the expression of a choice by the voters of a body politic.
McKinney v. Barker, 180 Ky. 526, 203 S.W. 303 L.R.A. 1918E, 581. Section 147 defines the word 'elections' thuswise:
'The word "elections" in this section includes the decision of questions submitted to the voters, as well as the choice of officers by them.'
Subsection 148 reads:
'Not more than one election each year shall be held in this state or in any city, town, district, or county thereof, except as otherwise provided in this Constitution. All elections of state, county, city, town, or district officers shall be held on the first Tuesday after the first Monday in November * * *.'
The phrase 'except as otherwise provided in this Constitution,' in section 148, suggests the inquiry as to what other elections are otherwise provided in the Constitution. We find four kinds of elections 'otherwise' so provided: Section 61 provides that local option elections may be held on a day other than the regular election days; section 152, vacancies in the General Assembly may be filled at a special election; section 155 provides section 148 shall not apply to the election of school trustees and other common school district elections; and section 157a provides that the county may incur an indebtedness not exceeding 5 per cent of the taxable property therein when the question is submitted to the voters of the county for their ratification or rejection at a special election held for that purpose 'in such manner as may be provided by law.'"
* * *
"It is not permissible for a city to hold an election submitting to the voters a public question on any day other than that fixed by section 148 for the holding the regular annual election, which is the first Tuesday after the first Monday in November of each year; nor for a county to hold a special election submitting a like question to the voters of the county on any day other than the day of the regular November election. Any other construction of section 148 would inevitably lead to the practice of calling elections on public questions on any day fixed in the order or resolution directing it to be called, which prevailed under the Constitution of 1850, to prevent which section 148 of the Constitution of 1891 was adopted. The holding of an election by a governmental unit, for the purpose of submitting to the voters thereof a public question, is in a sense special election, but when held it must be on the day fixed by section 148 - the first Tuesday after the first Monday in November. To construe this section otherwise is to be forgetful of its purposes as they are expressed by its own language.
Section 148 of the Constitution has been uniformly construed by this court to include all elections other than primary elections and the four exceptions we have already indicated, whether the election be held for a 'decision of questions' submitted to the voters as well as 'the choice of officers' by them.
Belknap v. City of Louisville, 99 Ky. 474, 36 S.W. 1118, 18 Ky. Law Rep. 313, 34 L.R.A. 256, 59 Am.St.Rep. 478;
Morgan et al. v. Goode et al., 151 Ky. 284, 152 S.W. 584;
Walker v. Goode, 153 Ky. 795, 156 S.W. 893;
City of Murray v. Irvan et al., 170 Ky. 290, 185 S.W. 859." (Emphasis added.)
Section 61 of the Constitution does not prohibit the holding of local option elections on a regular election day. By the use of the word "may" it simply authorizes such elections to be held on days other than a regular election day as determined by the state legislature; and as pointed out in the Ginsburg case, supra. The word "may" is permissive as defined in KRS 446.010 (20). Also, the case of
Renfrow v. Hamlin, 256 Ky. 192, 75 S.W.2d 1067 (1934) clearly indicates that in the absence of Section 61 [repealed but reenacted] permitting the legislature to exclude local option elections from being held at a general election as it has under Chapter 242, KRS, such elections could only be held on general election day.
Subsections (2) and (3) of Section 2 of S.B. 293, relates, as we previously pointed out, to alcoholic beverage control, and is made a part of Chapter 244 and not Chapter 242 governing the procedure for holding local option elections except by specific reference thereto in subsection (2). Though it could possibly be argued that subsection (3) is not a local option election within the meaning of Section 61 of the Constitution but simply a municipal election which can only be held on general election day, as pointed out in the Ginsburg case, supra, we believe otherwise to the degree that though it is a local option election, it is not restricted to the procedure outlined for local option elections generally, pursuant to KRS 242.020 to 242.040 and 242.060 to 242.120, by virtue of the omission of any reference to these sections as compared to the specific reference thereto governing the conduct of elections on the question of Sunday sales under subsection (2). Had the legislature intended the election under subsection (3) to be conducted under the local option statutes referred to in subsection (2), thereby prohibiting such election on a regular or primary election day [KRS 242.030(3)], it would have so stated, in our opinion.
In interpreting a statute the courts must give effect to the intent of the legislature.
Green v. Moore, 281 Ky. 305, 135 S.W.2d 682 (1939). In this respect you will note under subsection (3) the following provision:
". . . Said election shall be held on a date stipulated by the legislative body. . . ."
Clear and unambiguous language in a statute will be held to mean what it clearly expresses.
Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703 (1934).
Thus, the legislature has by virtue of the clear and unambiguous language found in subsection (3), and in compliance with the permissive terms of Section 61 of the Constitution, authorized the submission of the question concerning the sale of alcoholic beverages beginning at 1:00 p.m. on Sunday, on a date stipulated by the legislative body, which could, of course, include any regular November election such as November 2, 1982.
We also might comment on your contention that congressional and school board elections to be held this November are not "regular elections, " as this is incorrect. See