170 Ky. 33 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
This is a suit to enjoin the county of Pulaski and its fiscal court from issuing $300,000.00 worth of bonds for road purposes. The suit was originally brought by Lincoln Denton. During the course of the proceedings W. T. Trimble was permitted to intervene. The injunction being ^refused, plaintiff and the intervening petitioner appeal.
The election took place on December 18th, 1915, pursuant to an order of the county court, made at its regular October term, and based on a petition signed by the requisite number of legal voters and freeholders and theretofore filed in that court at its regular September term, 1915. On December 22nd, 1915, the election returns were duly made to the county election commissioners, who, after canvassing the same, certified that there were 2,095 votes in favor of the bond issue and 1,959 votes against it. They further certified “that under the law in this and the Constitution of this State the said proposition failed to carry.” Thereafter the county court entered an order, reciting the fact that it appeared from the certificate of the election commissioners that there were 2,095 votes for the bond issue and 1,959 votes against the issue; and containing the following:
“ * * *, and there not being a two-thirds majority in favor of the same, it appears that the proposition was lost. Case dismissed.” .
“Before the bonds authorized under this act shall be issued, the county court of the county, upon the petition of one hundred and fifty legal voters who are freeholders of the county, shall at the regular term thereof, after receiving said petition, make an order on his' order book directing an election to be held in said county on some day named in said petition not earlier than sixty days after said application is lodged with the judge of said court. ’ ’
In this case the petition did not specify the day but asked for the calling of an election on the ............ day of ...................................L.........., 1915. It is argued that the county court has no jurisdiction to call an election except on the day named in the petition, and, no day having been named, the order by which the county court fixed the day was invalid and did not authorize the holding of a legal election on that day. It will be observed that the statute does not declare in express terms that the petition shall fix the day of the election, but merely provides that the county court shall make an order directing the election to be held on some day named in the petition. We, therefore, conclude that the purpose of the statute was to confer upon the petitioners the right to name the day within the limits fixed by the statute, but if they fail to avail themselves of this right and leave the day blank, as was done in this case, such failure does not deprive the county court of the power to fix the day. Hence, if he names a day for the election not later than sixty days after the application is lodged, and the election is properly had and regularly held, the mere fact that no day was named in the petition will not render such an election invalid.
“Amendments to the Constitution — How Adopted.— Amendments to this Constitution may be proposed in either House of the General Assembly at a regular session, and if such amendment or amendments shall be agreed to by three-fifths of all the members elected to each House, such proposed amendment or amendments, with the yeas and nays of the members of each House taken thereon, shall be entered in full in their respective journals. Then such proposed amendment or amendments shall be submitted to the voters of the State for their ratification or rejection at the next general elec: tion for members of the House of Representatives, the vote to be taken thereon in such manner as the General Assembly may provide, and to be certified by the officers of election to the Secretary of State in such manner as shall be provided by law, which vote shall be compared and certified by the same board authorized by law to compare the polls and give certificates of elec*40 tion to officers for the State at large. If it shall appear that a majority of the votes east for and against an amendment at said election was for the amendment, then the same shall become a part of the Constitution of this Commonwealth, and shall be so proclaimed by the Governor, and published in such manner as the General Assembly may direct. Said amendments shall not be submitted at an election which occurs less than ninety days from the final passage of such proposed amendment or amendments. Not more than two amendments shall be voted upon at any one time. Nor shall the same amendment be again submitted within five years after submission. Said amendments shall be so submitted as to allow a separate vote on each, and no amendment shall relate to more than one subject. But no amendment shall be proposed by the first General Assembly which convenes after the adoption of this Constitution. The approval of the Governor shall not be necessary to any bill, order, resolution or vote of the General Assembly, proposing an amendment or amendments to this Constitution.”
It will be observed that the above section provides that if it shall appear that a majority of the votes cast for and against an amendment at the election was for the amendment, then the same shall become a part of the Constitution of this Commonwealth, and shall be so proclaimed by the Governor, and published in such manner as the General Assembly may direct.
The ground on which section 157a, popularly known as “the good roads amendment,” is attacked, is that it has never been proclaimed or published. The same question was before the Texas Court of Appeals in the case of Wilson v. The State, 15 Texas App. 150. In that State the Constitution, after providing the necessary steps- to be taken in proposing and adopting amendments, contains the following provision:
“If it shall appear from said return that a majority of the votes cast have been cast in favor of any amendment, the said amendment so receiving a majority of the votes cast shall become a part of this Constitution, and proclamation shall be made .by the Governor thereof.” Section 1, Article XVII.
In construing this provision the court held that it was the ascertained majority of the vote of the people, and not the proclamation of the Governor, which gives
Perceiving no ground upon which the proposed bond issue should be enjoined, it follows that the relief prayed for by plaintiffs was properly denied.
Judgment affirmed.