CASE 56. — --ACTION BY A. J. SHEEHAN, A LICENSED VENDOR OP WHISKY AGAINST THE LOUISVILLE & N. R. R. CO. TO COMPEL IT TO CONVEY INTOXICATING LIQUORS INTO LOCAL OPTION TERRITORY.

April 26.

#### Shehan v. Louisville & N. R. R. Co.

Appeal from Kent on Circuit Court.

"W. McD Shaw, Circuit Judge.

Judgment for defendant. Plaintiff appeals.

Reversed.

1. Statutes. — Construction.—Words used in a statute which have been judically construed are used in the light of the construction which has been placed upon them.

2. Intoxicating Liquors. — Statutes—In view of the judicial construction placed upon a prior similar statute, Act March 21, 1906 (Acts 1906, p. 320, c. 63), section 1, making it unlawful for any person or corporation to' bring into any county, etc., where the sale of intoxicating liquors has been prohibited, or may be prohibited, any, intoxicating liquors, etc., does not apply to liquor destined for one whose license to sell liquors has not expired.

M. H. McLEAN, Atty. for appellant.

Appellant contends that having an unexpired license to sell whisky at the time of the taking of the vote in the city of Falmouth, he had a right to bring whisky therein for sale.until the expiration of his license that had been previously granted, and the railroad being iar common carrier can be compelled by a mandatory injunction to convey such liquors to him for sale so long as his license remains in force.

T. B. HARRISON, JR., for appellee.

*479POINTS AND CITATIONS.

1. A common carrier is prohibited by law, under heavy penalty, from delivering liquor to consignees in any city, town, or district in Kentucky where such sale has been prohibited by law. (Acts, 1906, page 321).

2. The Act of March 21, 1906, prohibiting the common carrier from delivering liquor to consignees in any city, town, county, or district where the same is prohibited by law, is constitutional and valid.' (Commonwealth v. Hardy, 30 Ky. Law Rep., 532).

3. The adoption of prohibition under the local option law will revoke and annul any existing or unexpired license or privilege for the sale of liquor, so that the license or permission granted before the adoption of the law will be no protection to one who makes a sale after it, unless the law contains an expressed saving of vested rights that embrace previously acquired rights to sell by virtue of a license already taken out and paid for. (23 Cyc. of Law and Practice, 92).

Opinion op the Court by

Judge Hobson

Reversing.

A. J. Sheehan is engaged in the business of selling by retail spirituous, vinousj and malt liquors in the town of Falmouth, in Pendleton county, under a license heretofore granted him by the State and municipal authorities. His license expires on May 1, 1907. In December, 1906, a vote was taken in Pendleton county upon the question as to whether or not the sale of spirituous, vinous, and malt liquors should be prohibited therein, resulting against the sale. After this, on February 2, 1907, Sheehan purchased of the John Brenner Brewing Company four half barrels of beer, and on that day presented the beer to the agent of the railway company at Covington, Ky., for transportation to him at Falmouth, tendering to him the amount of the freight charges therefor. The railroad company refused to transport the beer to him at Falmouth, and he brought this action to *480obtain a mandatory injunction against it compelling it to do so. The defendant demurred to the petition, its demurrer was sustained, and the plaintiff appeals.

The only question presented by the record is whether the carrier may carry spirituous, vinous, or malt liquors into Pendleton county after a vote has been taken resulting against the sale. Section 1 of the act of March 21, 1906 (Acts 1906, p. 320, c. 63), is as follows: “It shall be unlawful for any person or persons, individual or corporation, public or private carrier, to bring into, transfer to other person or persons, corporations, carrier or agent, deliver or distribute, in any county, district, precinct, town or city, where the sale of intoxicating liquors has been prohibited, or may be prohibited, whether by special act of the General Assembly, or by vote of the people under the local option law, any spirituous, vinous, malt, or other intoxicating liquor, regardless of the name by which it may be called; and this act shall apply to all packages of such intoxicating liquors whether broken or unbroken.” In Watts v. Commonwealth, 78 Ky. 329, it was held that a license to sell spirituous liquors by retail protects the person receiving it, although by a vote of the locality the local option law is put in force before the license expires, and that the person holding the license may continue to sell until his license expires. In that case the court said: “It is true that the local option law existed when the appellant procured his license, and that he must be taken to have known that the people might vote at any general election, and thereby make the selling of liquor in Richmond unlawful, and the reco.rd shows that he in fact knew that the people were to vote on that question on the next day. But this knowledge on his part cannot change the law of the *481case. Until a vote was taken, the county court had an unquestioned right to grant a license to merchants to sell, and the question is whether the Legislature intended that licenses so granted should cease to protect the licensee if the people should afterward, within, the period covered by the license, vote against the sale of liquors. If the statute is to have that effect, it is certainly in the nature of a retrospective statute. It will operate to deprive the licensee of a privilege he had obtained and paid for before the vote was had, and at a time when the court had undoubted power to grant a license which would authorize him to sell for one year from the date of the license. It is a sound rule of construction that a statute shall have a prospective operation only, unless its terms show clearly a legislative intention that it shall operate retrospectively.”

That opinion was acquiesced in by the bench and the bar, and by the Legislature. The statute then in force remained unchanged until the present act was passed after the adoption of the new Constitution, and the act which was then adopted is in this respect in the same language as the former act. It is a sound rule that words used in a statute which have been judicially construed are used in the light of the construction which has been placed upon them. The rule in other states is held otherwise (3 Cyc. 92), and we do not doubt that the Legislature might have changed the rule if it had seen fit to do so; but strong reasons of public policy require that, after the judicial construction of the a,et has been acted upon for so many years, it should not be overruled by the court, when to do so would make acts criminal which have been done in good faith upon the judicial construction which the statute had received. The provision of the *482Constitution itself requiring the Legislature to provide a means for taking the sense of the people locally on the question of the sale of spirituous, vinous; and .malt liquors has no effect on tine question. The constitutional convention did not enact any regulation on the subject. It left the Legislature to do this. To illustrate: .The Legislature may provide when a vote may be retaken after a community has once voted, and it may provide when the vote shall take effect after it has been taken. There is nothing in the Constitution to restrict the power of the Legislature in these matters, and under our Constitution the Legislature has all the power not denied it by the Constitution expressly or by fair inference. Under this power to regulate the subject the Legislature has provided that spirituous, vinous, and malt liquors may be sold in local option districts by the wholesale under certain conditions. "We therefore conclude that Sheehan’s license protects him in selling until his license expires, and as to him the local option law will not take effect until the expiration of his license.

The first section of the act of 1906 above quoted makes it unlawful for a carrier to carry spirituous, vinous, malt, or other intoxicating liquors, and deliver them in any locality “where the sale of intoxicating liquors has been prohibited, or may be prohibited.” The sale of spirituous, vinous, or malt liquors is not prohibited in Falmouth by Sheehan until his license expires, and therefore the act does not apply to shipments by the carrier to him before the expiration of his license. The license is the authority of the State to carry on the business, and it would be nugatory if he could not get the goods to sell. The act is not designed to prohibit the carrier delivering the liquor *483in a local option district to a person who is not prohibited from selling it.

Judgment reversed, and cause remanded for a judgment as herein indicated.