186 Ky. 579 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming.
At an election held November 4th, 1919, there was submitted to the voters of the city of Louisville the following question:
“Are you in favor of the issue by the city of Louisville of bonds for two million ($2,000,000.00) dollars; as provided in ordinance No. 143, series 1919, to be used under an act of the General Assembly of the Commonwealth of Kentucky, and entitled ‘An act to enable cities of the first class to construct an extension of their systems for the disposition of sewage, approved May 18, 1912?'"
The act referred to is a part of the charter of cities of the first class and is found in subsection 16 of section 3037b, Kentucky Statutes.
An act of February 19, 1906 (Ky. Stats., sec. 3037b, subsections 1-15), authorized an issue of four million dollars of bonds by the city of Louisville for a similar .purpose. The validity of the first act was sustained by this court in Miller v. City of Louisville, 30 Rep. 664, 99 S. W. 284.
In section 11 of the 1912 act it is provided that in order to raise money for the construction of said sewer system the general council may adopt an ordinance, submitting to the voters of the city, at the regular city election, the question whether bonds of the city shall be issued for the purpose of carrying out the work provided for. Pursuant to said act the general council of the city of Louisville, by an ordinance approved June 5, 1919, authorized an issue of two million dollars of bonds for
Provision was made in said ordinance for the levying of an annual tax to pay the interest on said bonds and to create a sinking fund to pay the principal of the bonds at maturity.
In the sixth section of the ordinance, it is provided:
“ ... and the mayor is hereby authorized and directed to give public notice of the time, place and purpose of the election upon said question or proposition for at least ten (10) days (exclusive of Sundays) prior to the day of election, in each of the daily morning and afternoon papers published in the city of Louisville, in which notice this ordinance shall be embodied.”
At the election held as aforesaid 15,591 votes were cast in favor of the bond issue, 5,107 in opposition thereto ; thus the proposition carried by more than the necessary two-thirds vote of those participating.
In this suit to enjoin the issue of said bonds it is contended :
1. That “the regular city election” referred to in the act means the next regular city election and no other.
2. In the question submitted to the voters the date of approval, of the act authorizing the issue of bonds was given as May 18, 1912, when it should have been March 18, 1912, and this invalidates the bond issue.
3. That the provision as to the publication of the ordinance in section -six thereof was mandatory and the failure to meet the requirements of this provision is fatal to the validity of the bonds.
It is unnecessary to discuss a fourth point made by appellant as it is embraced within the three mentioned.
A demurrer to the petition was sustained, plaintiff (appellant) declined to plead further, the petition was dismissed and this appeal followed.
First. We find no merit in the contention that the words “at the regular city election” meant the next regular city election succeeding the passage of the act. At the time this act was passed the commissioners appointed under the earlier act of 1906 had not completed their duties and to enable the city, in the event it was thereafter deemed expedient to further extend its system of sewerage, the 1912 act was passed.
The use of the word “the” in the statute did not mean any specific election other than a regular city election, and had the legislature intended otherwise, as contended by appellant, it would have followed the same procedure as in the earlier act and fixed the date thereof. Had “a” or “any” been substituted for “the” the statute could not have been plainer. It was the legislative intention to leave the matter of date to the discretion of the city authorities, the only qualification or limitation being that the question should be submitted, to the voters not at any election, but at any regular city election, that is, at any election at which city officers are to be chosen.
Second. It will be noticed that in the question printed on the ballots, reference is made to the fact that the bonds were to be used under an act of the General Assembly of the Commonwealth of Kentucky entitled “An act to enable cities of the first class to construct an extension of their systems for the disposition of sewage, approved May 18, 1912.” The recited date of approval was. erroneous. The legislature was not in session in May of that year. The act referred to was approved March 18, 1912, and it is contended this invalidates the bond issue. With this contention we cannot agree. The date of approval is not a part of the act. It was the only act of like import passed since 1906. The title of the act was properly stated and the mere inadvertent use of May for March could not mislead the voters, nor could or would it in any wise invalidate or affect the issue of bonds thereunder. As a matter of fact in the ordinance proper section 1, the date of approval of the act is correctly stated, but in section 6, due to a mere typographical error, the approval is given as May 18, 1912, instead of March. Mere verbal inaccuracies or clerical errors in
In Vincent v. Pacific Grove, 102 Cal. 405, 36 Pac. 773, the same question was raised relative to a resolution pertaining to certain street -work. In stating the date of the passage of the resolution, through mistake the year was given as 1880, when it should have been 1890. The court held the mistake inconsequential; that it was not necessary for the date of approval to be published, the statute requiring merely that the resolution be published to test the validity of any bonds issued under the ordinance. See also Ryans v. Neutzel, 184 Ky. 292, 211 S. W. 852; Nichols v. Logan, 184 Ky. 711, 213 S. W. 181.
Third. For the reasons presently stated we do not pass upon the question as to the effect of the alleged failure to publish the ordinance.
The lower court properly sustained the demurrer to the petition because it does not affirmatively show there has not been a substantial compliance with the ordinance as to publication. Then, too, there is a presumption that public officers have done their duty; hence it is upon one attacking an ordinance to show affirmatively and satisfactorily that it has not been published. Muir’s Admr. v. City of Bardstown, 27 R. 1150, 87 S. W. 1096.
However, it is impossible for us to tell from the petition either the nature or extent of the publication. That some publicity was given in the daily press and perhaps by other means seems certain. Nor do we question that the parties have in good faith endeavored to apprise the court of all points and facts necessary to an intelligent decision affecting the validity of the bonds, but instead of facts,-the petition on this point is rather a statement of conclusions. The allegations are indefinite and uncertain, so much so that we are unwilling to pass upon this phase of the case on the present state of the record.
We are fully cognizant of the importance of the question at issue, the security of the purchaser’s investment, the maintenance of the city’s good name, the imperative need and demand for extension of the city’s sewage system, and the interest of the voter and taxpayer in incurring an indebtedness of two million dollars ($2,000,000.00), all of which convinces us that in affirming
The soundness of this conclusion is emphasized by the fact that the final judgment in this case will be conclusive upon the city and appellant, a taxpayer of the city, not only upon the questions decided, but upon all questions affecting the validity of the bonds which might have been raised and decided, assuming, of course there has been a bona fide effort to submit all questions in any wise affecting the validity and marketability of the bonds. Home Construction Co. v. Duncan, 111 Ky. 914, 64 S. W. 997; City of Newport v. Newport National Bank, 148 Ky. 213, 146 S. W. 377. As said in the latter case:
“It will not do to say that a city may file a proceeding to test the validity of the bonds, and because only certain questions are raised and discussed, that the city, or any taxpayer, may thereafter attack the bonds upon other grounds not actually passed on and determined. If this were the rule, a judgment would never be res adjudicata.”
Stuessy v. City of Louisville, 156 Ky. 523, 161 S. W. 564, relied upon by appellee, involved the validity of certain school improvement bonds. The opinion discusses questions kindred to those presented by the present appeal, but the case is. not directly in point. We call attention to the fact that the ordinance in the Stuessy case was passed when section 2774 Kentucky Statutes was in force, requiring all ordinances to be published in like manner as the proceedings of the general council, viz.: in the newspapers annually selected to do the city printing (Ky. Stats., sec. 2773.) By an act of 1918, section 2774 was repealed, hence when the present ordinance was passed June 5, 1919, there was no provision requiring its publication. The ordinance in the Stuessy case was published in full in the newspapers and the court held that five days’,notice of the election was a sufficient compliance with the ordinance. The ordinance in the instant case referring to the instructions as to the publication, contains these words, not found in the ordinance -in the Stuessy case, “in which notice this ordinance shall be embodied.”
Since further litigation will be necessary to settle the question under consideration we suggest that in the new suit plaintiff allege specifically and in detail the character and extent of the publication
While the conclusion reached necessitates an affirmance of the judgment, and it is so ordered, due to the insufficiency of the petition, we expressly refrain from expressing an opinion as to the validity of the proposed bond issue.