194 Ky. 284 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
A very novel question is presented by this appeal from a decree of tire McCracken circuit court’denying the planitiff below, and appellant here, an injunction restraining Mayor Katterjohn and the city commissioners of Paducah from issuing and marketing city bonds of the par value of sixty thousand dollars. It is conceded that the call for the election upon the bond issue was properly and regularly made by the city commissioners, and that the election was duly and fully advertised as
To the petition in the instant case was interposed a general demurrer which, after hearing, the court sustained, and the action was dismissed in consequence of the failure of the plaintiff to further plead. From this last order this appeal was prosecuted.
Conceding that all the steps taken calling and holding the election upon the question of whether the city .should issue and sell bonds in the sum of sixty thousand
While there are some cases in foreign jurisdictions, notably California, which hold that courts of equity have jurisdiction independent of statute to hear and determine contested election cases involving the adoption of bond issues, we have established and consistently maintained a contrary rule. Some of the cases from foreign jurisdictions are: George C. Beason, et al. v. Jesse M. Shaw, 18 L. R. A. (N. S.) 566; Henry Truelson v. City of Duluth,
“The act in question does not provide for a contest. . . . Inasmuch as the general law provided a mode of contesting elections held under it, it was contended that the county seat removal election might be contested under those provisions. It was held, however, that as the general election law regulating contested elections, was confined solely to the election of persons to office it was not applicable in that case, and consequently no statutory authority existed for the contest of such election. For the same reason we conclude that the clause in question is not broad enough to make 'the contest provisions of
In the case of Patterson, &c. v. Knapp, &c., reported in 125 Ky. 474, the election was contested upon the ground that the officers of election refused to permit certain qualified voters to vote who offered to vote, and who, had they been permitted to vote, would have voted against the t'ax, and, further, that the. officers permitted certain other persons to vote, who, it was alleged, were not qualified voters of the town, and who voted in favor of the- tax. In discussing the matter we held that the alleged irregularities were sufficient to have changed the result of the election had they been corrected. Notwithstandng this we said that: ‘ ‘ Courts of equity have not inherently, and had not at common law, the jurisdiction to try contested election cases. Nor have ,any other courts for that matter. •Such jurisdiction exists only when it is conferred by statute. However desirable it may be that some tribunal should be provided in which a contest might be instituted ■and tried, be the matter involved either the .selection of public officials or the imposition of a tax upon the people by vote of the electors, that is a question that addresses itself to the discretion of the legislature,” and we affirmed the judgment, dismissing the action, which was' intended to contest the election on the proposition of voting the tax. The legislature has power to and, in justice, it seems it should empower courts to hear and determine contests of elections on bond issues and other propositions submitted to a vote of the people, for it is easy to imagine a case where great injustice might be done through the fraud or misconduct of the officers holding such an election or the persons voting at such election. But since no power inheres in a court of equity to try and determine such contest cases, and the General Assembly has not seen fit to confer upon courts in such cases as it has in other elections the right to. hear and determine such contests, no such right exists, and the attempt of the McCracken circuit court to hear and determine the contest in the case of Gilbert v. Quarles, supra, was entirely outside of and beyond the jurisdiction of that court, and the court having' no jurisdiction of the subject of the action the judgment entered by it was a nullity, absolutely void. A void judgment may be at
Judgment reversed.
Whole court sitting