29 S.W.2d 547 | Ky. Ct. App. | 1930
Affirming.
Pursuant to a proper resolution of the board of education of Ludlow, a city of the fourth class, the general council of that city called an election for the purpose of submitting to the voters the question whether bonds to the amount of $160,000 should be issued for the purpose of providing funds for the erection of a new school building in the city. The election was duly held, and the proposition was carried by a vote of 1339 to 350. Thereupon John H. Boll, a citizen and taxpayer of the city, brought suit to enjoin the issuance of the bonds on the ground that the amount of the bonds proposed to be issued exceeded 2 per cent. of the taxable property in the *813
city, the limit fixed by section 158 of the Constitution. A demurrer was sustained to the petition, and the petition was dismissed. On appeal it was held that, on the facts stated in the petition, the entire issue exceeded the debt limit, but that bonds to the amount of $73,657 could be issued, and judgment was reversed and cause remanded with directions to overrule the demurrer to the petition and for further proceedings consistent with the opinion. Boll v. City of Ludlow,
During the pendency of the action there was a substantial change in the financial condition of the board of education, and an increase in the taxable property of the city, and the board filed an answer pleading facts showing that it was entitled to issue bonds to the amount of $96,217.88, and that proper steps had been taken to provide for the issue and sale of bonds to the amount of $77,000. Thereupon the case was submitted on the pleadings, and the lower court enjoined the issuance of any bonds in excess of $96, 217.88, and upheld the bond issue to the extent of $77,000. The taxpayer appeals.
We have ruled in a number of cases that, in determining whether or not an indebtedness exceeds the constitutional limit, the time the bonds were sold is controlling, and not the time of the election. Smith v. Livingston County,
But the point is made that the voters of the city voted for a bond issue of $160,000 to build a $160,000 schoolhouse, and might not have voted for the proposition if it had been understood that they were to get only a $77,000 schoolhouse. It is therefore argued that there has been a substantial departure from the plan originally submitted and that bonds to build a $77,000 schoolhouse may not be issued without submitting the proposition at another election. Not only did we hold in our original opinion that bonds for a less amount than $160,000 could be issued, but have often held that, where the people vote for a bond issue in excess of the limit fixed by section 158 of the Constitution, only the excess is void, and that bonds within the constitutional limit may be issued. Moss v. City of Mayfield,
Judgment affirmed.
