170 Ky. 290 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
Murray, in Calloway county, is a city of the fourth class. By an ordinance adopted March 15th, 1916, its general council called an election to be held May 20th, 1916, for the purpose of determining whether the city should increase its present indebtedness in the sum of $20,000.00 for the construction, operation, and maintenance of a municipal electric light and power plant.
Contending that an election' of this character could legally be held only upon the general election day in November, the appellees, taxpayers of the city, brought this action to enjoin the holding of the election and the alleged unlawful expenditure of the public money for that purpose.
The circuit court granted the injunction, and the city and its officials appeal.
Section 155 excepts elections for school trustees from the control of section 148, supra; by section 61, local option elections “may be held on a day other than the regular election days;” and, by section 152, vacancies in the General Assembly may be filled at a special election.
These three provisions constituted the only exceptions to section 148 of the Constitution, as originally adopted; all other elections must be held on the first Tuesday after the first Monday in November. Belknap v. City of Louisville, 99 Ky. 474, 34 L. R. A. 256, 59 Am. St. Rep. 478; Morgan v. Goode, 151 Ky. 284.
Section 157a, being the amendment of 1909 to the Constitution, added another exception; but that amendment applies only to elections concerning the creation of an indebtedness for public road purposes. Houston v. Boltz, 169 Ky. 647.
These authorities are conclusive of the proposition that an election held under section 157 of the’ Constitution must be held on the general election day in November and, that the chancellor was clearly right in so holding.
In Allison v. L., H., C. & W. Ry. Co., 9 Bush. 252, injunction was held to he the proper remedy to prevent the issuance of bonds which had been voted at an election called without authority of law. If equity will enjoin the issuing of bonds thus voted, we see no good reason why it should not enjoin the illegal election in advance, and thereby save to the taxpayers an unnecessary and improper expense. Crampton v. Zabriskee, 101 U. S. 609.
In Solomon v. Fleming, supra, the county commissioners proposed to call an election to locate the county seat after a county seat had been selected at a previous election, whereupon certain taxpayers enjoined them from calling the second election.
In sustaining the remedy by injunction, the Supreme Court of Nebraska, said:
“We are bound to take notice that the relocation of a county seat, necessarily involving one, and possibly two or more elections, will impose no inconsiderable burden upon the people in the way of taxation. Since the county board were acting without authority of law in calling the election, we can see no reason why a complaining taxpayer should remain idle until the election had been held and the rights of innocent parties intervened.”
Judgment affirmed.