197 Ky. 480 | Ky. Ct. App. | 1923
Affirming.
Since some time in the year 1918 Paducah, a municipal corporation, made by legislative enactment a city of the second class, has, as permitted by the laws of this state, been conducting its municipal government, business and affairs under what is known as the ‘ ‘ commission form of government.” At the regular election held November 7, 1922, however, there was submitted by an order of the McCracken county court to the determination of the voters of the city the question as to whether or not it should abandon the commission form of government. The election resulted in favor of the abandonment of that system. 2,510 votes being cast fpr and 828 against its abandonment.
Following the canvass, certification and return of the ballots and votes by the officers of the election, this ac- ' tion was instituted in the McCracken circuit court by the appellants (plaintiffs in the court below), Z. T. Bryant and Mel Byrd, resident citizens and taxpayers of the city of Paducah, against the appellees (defendants in the court below), James M. Lang, judge, and John W. Polk, clerk of the McCracken county court, attacking the legality of the election and seeking to enjoin the appellee, Lang, as county’ judge, from directing the entering of record in the county court of an order declaring the result of the election, and the appellee, Polk, as clerk of that court, from entering such order, or by means of a copy thereof or otherwise certifying the result of the election to the clerk of the city of Paducah. Upon the ■ filing of the petition the circuit court, on the appellants’ motion and following their execution of the necessary bond, issued a temporary restraining order against the appellees staying any action on their part in the matter of entering the order declaring the result of the election and certifying the same to the city clerk, until a later • date fixed by the court for the appellants to make a formal application for the injunction prayed in their petition. When that time arrived the appellees filed a demurrer to the petition as then amended and, without waiving same, also filed an answer traversing all the averments of the petition, as amended, setting forth the .appellants’ grounds of attack upon the validity of the election; and after the filing by the parties of a written statement of facts upon which they had mutually agreed, the case was. submitted to the court upon the.appellants’ motion fpr an injunction, the appellees’- motion to
The entire evidence heard in the court below is contained in the agreed statement of facts found in the record, from which it is apparent that the only question in dispute between the parties in that court and now on the appeal, is as to whether there was prior to the election, ,-such newspaper publication of the order of the county ■court calling the election as was required by the statute. Tt is insisted by the appellants that the newspaper publication as made did not comply with the provisions of the ¡statute and that in holding to the contrary, the circuit ■court committed reversible error; while the appellees maintain that such publication fully met the requirements of the statute and, consequently, that the ruling of the circuit court to that effect was free of error.
The entire law of this state, as originally enacted and subsequently amended by the legislature, providing both for the adoption and abandonment of the commission form of government by cities of the second- class, is contained in Carroll’s Kentucky Statutes (edition 1922), subdivision 13, sections 3235c-l to 3235d, inclusive; from which it will be seen that both the adoption and abandonment of such form of government by the city must be effected by the same means, viz., a submission of the question to the decision of the legal voters of the municipality as expressed by ballot at an election to be called and held in the manner prescribed by sections 3235c-3 and 3235c-29 of the statutes, the first applying to an election respecting the adoption, and the second to an election respecting the abandonment of the commission form of government, but each containing the same provisions as to the manner of calling and holding the election.
Section 3235c-29, supra, entitled: “Termination of government, ’ ’ etc., after providing that whenever the citizens of a city which has been organized and. conducted not less than four years under the commission form of government, shall desire to terminate such government, and shall have filed with the county judge written peti
Following the foregoing provisions of the section are others prescribing the form of the question to be voted on, making it the duty of the county clerk to deliver to the sheriff, within five days after it is made, a certified copy of the order of the county court calling the election, and imposing upon the sheriff certain duties to be performed after receiving of the clerk the order, which duties are defined as follows:
“And it shall be the duty of said sheriff, or other such officer, to have such order published in some weekly or daily newspaper published or circulated in said county, for at least two weeks before the election, and also to advertise the same by printed or written hand bills posted in conspicuous places in said city, for the same length of time. If there is no weekly or daily newspaper published in said city,- or the proprietor of such paper refuses to publish the said notice, the printed or written hand bills provided for, shall be sufficient notice. The sheriff, or other such officer, 'shall have the advertisements and notices herein provided for, posted as herein required, within seven days after he receives the order of the county court. ... ”
It is not alleged in the petition that the county judge-of McCracken county acted without authority in the matter of ordering the election in question; that the order therefor did not submit in proper form to the voters the proposition to be determined by their'votes, or that in form or substance it failed, in any particular, to-comply with the requirements of the statute, supra. Ñor is it a'l
As it is agreed in the statement of facts appearing in the record that the election was advertised by printed hand bills, conspicuously posted in each voting precinct of the city for the length of time and in the manner required by the statute, the single question submitted to us for determination is, whether there was such newspaper publication of the order of the county court calling the election as met the requirements of the statute. As we have already seen, section 3235c-29 of the statute, supra, made it the duty of the sheriff after receiving the order of the county court, which of itself constituted the call for and notice of the election, to have “it published in some weekly or daily newspaper, published or circulated in said county, for at least two weeks before the election; and also to advertise the same by printed or written hand bills posted in conspicuous places in said city for the same length of time; . . . ” and it is agreed in the statement of facts filed that publication of the order of the McCracken county court calling the election was made by the sheriff in the News-Democrat, a daily newspaper then and for many years previously published in the city of Paducah and McCracken county, and having a general circulation in that city, county and a large adjacent territory; and, furthermore, that the News-Democrat is published and issued in the morning of each day of the week, except Monday.
It is also agreed in the statement of facts that the first publication of the order and notice of the election in the News-Democrat, appeared in its daily issue of Tuesday, October 24, 1922, two weeks before the day of the election, and that this publication was followed by its like publication in each daily issue of the newspaper made thereafter down to and including the day of the election. More precisely stated, the publication was made in each
It is insisted by counsel for appellants that notwithstanding the latter agreed fact and the further agreed fact that the notice of the election appeared in every other daily issue of that newspaper beginning on October 24th, and ending November 7th, the day of the election, its failure to publish it on the two Mondays referred to invalidated the election. While we agree with counsel as to the mandatory character of the statute respecting the advertisement required of the election, our examination of the authorities cited by them in support of the above contention fails to convince us of their applicability to the controlling facts presented by the case at bar.
In Central Construction Co. v. City of Lexington, 162 Ky. 286, one of the cases relied on, the sufficiency of a newspaper publication of the notice of an election to authorize a bond issue was involved, the statute requiring such publication “for at least two weeks just preceding the election.” The election was held invalid because of the insufficiency of the publication of the notice which, in contemplation of the statute, did not first appear in the newspaper, a daily, “two weeks before the election” and was in fact only published therein on each of the nine days immediately preceding and including the day of the election. In the opinion it is in part, said:
“Whether the provision of the act, supra, requiring it (the ordinance constituting notice of the election) to be published for ‘at least two weeks just preceding the election,’ be construed to mean each of the two weeks, running from Sunday to Saturday, inclusive, next preceding the week in which the election was held, or fourteen days just preceding the election and including the day thereof, under neither computation can it be made to appear that there was a publication of the ordinance for at least two weeks just preceding the election. The act does not require a daily publication of the ordinance for two weeks just preceding the election; therefore, it would seem that its publication once in each of the two
In Hatfield v. City of Covington, 177 Ky. 174, another case cited for appellants, involving the same question decided in the case, supra, the bond election was also held invalid because of the insufficiency of the newspaper publication of the notice of the election, as there were three daily issues of the paper, vix., on each of the days, Friday, Saturday and Monday just preceding the election, none of which contained any publication of the notice of the election. The court’s reasons for thus holding appear in the following excerpt from the opinion:
“Accordingly the notices appearing in every issue of a daily newspaper during the prescribed period is sufficient. Etie v. Code, 4 La. 383. If no paper is published upon some of the days, as is customary in certain localities with respect to Monday and holidays, the notice is not invalidated thereby. Moore v. Malla Walla, (C. C.) 60 Fed, 961; Cal. Impro. Co. v. Reynolds, 123 Cal. 88, 55 Pac. 802; Richter v. Harper, 95 Mich. 221, 54 N. W. 768; Carpenter v. St. Paul, 23 Minn. 233; Roth v. Farsee, 107 Mo. App. 471, 815 W. 913; Galveston v. Heard, 54 Texas 420; Bowles v. Braner, 89 Va. 466, 16 S. E. 356. And, as Sunday is not a juridical day, a publication on that day will neither aid nor detract from the validity of the publication. Omsby v. City of Louisville, 79 Ky. 197. Our conclusion is, that the statute calls for a continuous publication of the notice in every issue of the official newsjaaper published during the prescribed period, except those published on Sunday.”
In Katterjohn, Mayor v. Kelley, 191 Ky. 238, also cited for appellants, it was held that a newspaper publication of the notice of an election respecting a bond issue, was fatally defective. The publication of the notice in that case, as in this! was made in the Paducah News-Democrat, which then, as now, was issued on every day of each week, except Monday, though the fact that it was never issued on Monday of any week, was not shown by the record in that case. S'o, evidently, the omission from the record-of a showing of this fact, together with its failure to show that there was no publication of the notice by the newspaper on two Mondays embraced in the two weeks preceding the election, naturally led the court tó assumé that the newspaper was issued on those Mon
In the later case of King v. Katterjohn, 193 Ky. 359, this court again considered the same question, and in its construction of the statute arrived at a different conclusion. In that opinion it is, in part, said:
“It has heretofore been held that the provision of the statute, supra, which provides for a publication of the ordinances, where an official newspaper exists, ‘for at least two weeks just preceding the election,’ means a publication of the ordinance in every issue of the paper during the prescribed period, except upon Sundays, but if there is a day during the period upon which the paper is not accustomed to be published, the omission of the publication upon that day does not invalidate the requisite publication. Hatfield v. City of Covington, 177 Ky. 124, 197 S. W. 535. Sunday is not a juridical day and its publication upon that day neither adds to nor takes from the validity of the ordinance. Ormsby v. Louisville, 79 Ky. 197. It is admitted, however, that the official newspaper for the city of Paducah is published every day in the week, except Monday, 'but on that day it is not published; hence in this case, however the term ‘for at least two weeks just preceding the election’ is calculated, the publication was a substantial compliance with the statute, having been published in every issue of the official ‘newspaper during the prescribed period.”
It will be discovered that the statute applicable to cities of the second class construed in the several cases, supra, contains substantially the same provisions with respect to the manner of ordering, advertising and holding the elections therein authorized that are found in section 3235c-29, Kentucky Statutes, under which the election involved in this cas-e was held, except that in the latter the words “just preceding the 'election” do not appear as in the former; nor does it contain as does the former, any requirement that the newspaper in which the election is advertised shall be the official newspaper of the city. Its only requirement in regard to the advertisement of the election is, that it shall be the duty of the sheriff to have the order of election “published in some weekly or daily newspaper published or circulated in said county, for at least tioo weeks before the election; also to advertise the same by printed or written hand bills posted in conspicuous places in said city, for the same length of time.” .
