Case 111 — Indictment against Louisville & Evansville Packet Company fob Violating Local Option Law.

April 15.

#### Commonwealth v. Louisville & Evansville Packet Co.

APPEAL FROM BRECKINRIDGE CIRCUIT COURT.

Prom a Judgment Sustaining a Demurrer to the Indictment the Commonwealth Appeals.

Reversed.

Intoxicating Liquors — ¡Local Option 'Law — Violation—Jurisdiction — Statutes.

Heldr 1. Kentucky Statutes, 1903, section 198, declares that Kentucky’s jurisdiction covers the entire soil and waters within its boundaries, and that each county whose boundary 'isr de- ■ scribed in part by the-Ohio river shall be considered as bounded in that particular by the State line. .Sections 1078-1090 require the counties to be laid off into not less than three, nor more than eight, magisterial districts. The Cloverport magisterial district, in Breckinridge county, in which a local opton law is in force, is. bounded as “beginning at a point on the Ohio river,” and, in closing, “thence to the Ohio river; thence up the river to the place of beginning.” Defendant was charged with having rented on its steamboat a barroom to another, in which he sold liquors, with defendant’s knowledge and consent, to a person at the wharf in Cloverport while the boat was anchored to the wharf on the Ohio river, a navigable stream. Held, that the act charged took place within the Cloverport magisterial district.

J. R. LAYMAN and N. B. HAYS, attorney general, for commonwealth.

(No brief in the record.)'

MURRAY & MURRAY, for appellee.

On hearing the demurrer to the indictment it was agreed that the boundary of the local option district set out in the *937order of the county court creating said district, should he con- • sidered by the court as if set out in the indictment.

iSaid lorder shows that the Ohio river is boundary line of the district, the line calling to run to the Ohio river, “thence with the river,” &e.

The legal question is, does jurisdiction rest in the Kentucky courts to punish a violation of the local option law of a district lying adjoining the river, where the alleged offense was committed on the river?

We contend that such jurisdiction does not lie| in the Kentucky oour.ts for three reasons:

1. The jurisdiction of the counties over the river has been conferred by statute,

2. The *offense*charged is not an offense against the State.

3. There is not a statute extending magisterial districts or the jurisdiction of them beyond their territorial limits.

4. We do not regard the allegation that the boat was tied to the shore as important, as in many cases it has' been held that the boat being tied to the shore does not affect the question.

AUTHORITIES CITED.

Kentucky Statutes, chap. 12, articles 1, 2; Kentucky Statutes, sec. 198; Hundley’s Lessee v. Anthony, 5 Wheaton, 375; Fleming v. Kenny, 4 J. J. Mar., 158; McFall v. Com., 3 Met., 394; 'Charter of Cities of the 1st, 2d, 3d, 4th, 5th and 6th classes; Meyler v. Wedding, 21 R., 1006; State v. Plants, 52 Am. Rep., 211.

Opinion oí the court bt

JUDGE HOBSON

Reversing.

The locall option law is in force in the Cloverport magisterial district of Breckinridge county. Appellee was indict■ed on the charge that it rented on its' steamboat' known as the “Henry Harley,” in its possession and under its control, a room, bar, and place, to another, in which he solid spirituous, vinous, and malt liquors, with its knowledge and consent, to Edward Gregory, at the wharf in Cloverport, while the boat was anchored to the wharf on the Ohio river. The defendant demurred to the indictment, and on the hearing of the demurrer it was agreed that the Cloverport magisterial district is bounded as follows: “Beginning at a point on the *938Ohio river' (here follow several calls) ; thence a straight line to the Hancock county line to .William B. Beaty’s residence; thence with the Hancock county line to the Ohio river; thence up said river to the beginning.” It was agreed that the boundary of the district should be considered on the demurrer as if set out in the indictment. The agreement also contained, the following: “The town of Oloverport is located in the district on the Kentucky silde of the river,.and is bounded on the north by said river, which its a navigable stream.”

The court sustained thei demurrer and dismissed the indictment on the ground that the acts complained of, being done on the Ohio river, were not done within the Oloverport magisterial district, as the lines of the district begin at a point on the Ohio river, and, in closing, run to the river, and thence up the river to the beginning. It is insisted for appellee that the judgment is right, and that the territorial limits of the district extend only to the river, and do not include any part of it.

The boundary of Kentucky extends to the northern shore of the Ohio river, at low water mark. In the act of February 11, 1820, after the boundaries of the State were defined, it was enacted: “The sovereign power and jurisdiction of the Commonwealth of Kentucky extends to and over the entire soil and waters within the limits described in the preceding section, except so far as she may have ceded jurisdiction to the United States for national purposes. Each county in this Commonwealth, whose boundary is described in part by the Mississippi and Ohio rivers, shall be considered as bounded in that particular by the State line; and the islands thereof shall be within the' respective counties holding the main land opposite thereto, within this State; and the several counties and tribunals thereof shall hold and exercise *939jurisdiction accordingly.” Ky. St.; 1903, section 198. By sections 1078-1090, Ky. St., 1903, the several counties are required to he laid off into magisterial districts, and it was not contemplated that- any portion of the county should he left out of the districts thus, provided for; the 'statute requiring the commissioners in each case “to divide the county into not less than three nor more than eight justices’ districts.” In calling for the Ohio, river as the northern boundary of the Oloverport district, which bordered! on it, the commissioners followed the language used by the Legislature in creating the counties! bordering on the Ohio river, so far as we have seen. The district begins at a point on, the Ohio river, and runs thence to a given point in Breckinridge county. The beginning point is not fixed on the south bank of the river. The only designation is, “on the Ohio river.” The natural meaning of this is that the district line begins in the line of the county on its northern shore, for it can not be presumed that the commissioners intended to leave out any part of the county in the division which they made. The same construction must be given to the closing line, “thence up said river to the beginning,” for the line of the district runs to the river with the Hancock county line, and all that part of Breckinridge county next to Hancock was plainly intended to be embraced in this magisterial district. There is nothing in the calls to indicate that it was contemplated that the line of the district should stop short of the northern limit of the Hancock county line, and the contrary is shown to have been the intention by the last call, which runs, “thence up said river to the beginning,” which is the point “on the Ohio river.” In the case of patents calling to begin on a navigable stream, and to run with it, the rule in this State is that the title to the bed.of the river passes to the middle of the stream. Lumber Co. v. Green, 87 Ky. *940257, 10 R., 139, 8 S. W., 439; Miller v. Hepburn, 71 Ky., 326; Asher Lumber Company v. Lunsford, 30 S. W., 968, 17 Ky. Law Rep., 245; Cockrell v. McQuinn, 20 Ky., 61. But as the State of Kentucky includes the whole of the Ohio river to the northern shore at low-water mark, its subdivisions dall'ing to begin on the river and run with it are not to be limited to the thread' of the stream, but must go to the State line. In the construction of every document, the aim of the court is to arrive at tkei intention of the makers, and give fair effect to it; and, as the counties of the State bordering on the Ohio river extend to the northern limit of the State, the magisterial districts bordering on the river must be given the same limit, for it was manifestly not the. purpose of the Legislature that any part of a county should be left out, and be not included in any of the districts. To illustrate: If an island was formed in the Ohio river between the upper and lower comers of the Cloverport district, would it be maintained that this island was not a part of the. district? Or if, in times of low-wgter, sand bars are left along, the Kentucky shore, would it be said that these, though land in Kentucky, and in Breckinridge county, belonging to the .adjoining proprietors, are not in the district? The purpose of establishing magisterial districts is to secure police protection from local officers, and this is just as necessary on the river as on the land. In Welsh v. State, 25 N. E., 883, 9 L. R. A., 664, the Supreme Court of Indiana affirmed a conviction where the defendant had been fined for selling whisky on the Ohio river in violation of the license laws of Indiana. The jurisdiction of Indiana and Kentucky on the river is concurrent, and .no one can with impunity violate the laws of either State on the river.

Judgment reversed and cause remanded, with directions to overrule the demurrer to the indictment.