18 S.W.2d 862 | Ky. Ct. App. | 1929
Affirming.
The appellant sought an injunction to prevent the collection of school taxes in the Seco-Millstone graded common school district in Letcher county which had been assessed against it for the year 1928. Its grounds, as stated in its petition, are that the graded school district was not properly organized, and that the trustees were therefore without any authority to impose the tax. The grounds alleged in the petition are: (1) That the Letcher county court was without jurisdiction to order an election for the establishment of the district until the fact was established that the petitioners for the election constituted 25 per cent. of the white legal voters and taxpayers of the territory to be affected; (2) that the election was held under the provisions of section 4464, Ky. Stats., then existing, and that there was not indorsed on the petition the approval of the county board of education, or the superintendent of county schools; (3) that the certificate of election does not show that the majority, or any number, of the qualified voters in the proposed district voted in favor of establishing the graded school district; (4) that the certificate of election certifying the result does not show that the election was held on March 26, 1921.
The proceedings to establish this graded school district were had in 1921. The school district was organized as we gather from the petition, and has existed since its establishment down to the present time. It is now attacked on the ground that the proceedings were irregular, or illegal.
The first ground of attack is that the record does not disclose that 25 per cent. of the white legal voters within the territory to be affected signed the petition, and that the county court, being a court of special jurisdiction, was without authority to consider the petition until it was first established that it was signed by 25 per cent. of the legal voters. The petition recites that it contains the signatures of more than 25 per cent. of the legal voters within the territory to be affected. Certainly that was sufficient to give the county court jurisdiction to hear and determine the matter presented, or at least to hear and determine the question whether 25 per cent. of the white legal voters within the territory affected had subscribed their names to the petition. Section 4464, Ky. Stats., as it then existed, does not provide any particular *35
method whereby the court may ascertain whether 25 per cent. of the white legal voters had signed a petition. Counsel for appellant relies on the case of Hopkins v. Dickens,
Another ground relied on in the petition is that the petition for the election did not contain indorsed on it the approval of the application to establish the district, in writing of the county board of education, or the county superintendent of schools. The copy filed with the petition in the first place did not contain these indorsements through an oversight of the county clerk in making the copies, but this error was corrected, and the exhibit as finally filed shows that there was an indorsement of approval by the county school superintendent and also by the county board of education. Counsel for appellant, however, argues that the approval of the county board of education was not sufficient because the name of *36
the county board of education appears to have been subscribed by the chairman without any record, or evidence, to show that the chairman had authority to act. The case of Owens v. Trustees McKinney Graded Common School District,
Another ground relied on is that the certificate of election did not show that the majority, or any number of the qualified voters in the proposed district, voted in favor of establishing the graded common school district. The certificate of election commissioners is full and complete. It shows that the proposition to establish the district and impose a tax for the support of the school "was voted or carried, there being 75 votes for and no votes against the levying of said tax."
This court has never held that a majority of all the voters residing within district or municipality and entitled to vote must actually vote in order to carry a proposition to impose a tax. If 75 votes were cast in favor of the establishment of the district and the imposition of the maintenance tax, and none were cast against it, the election commissioners were correct in certifying that the proposition was voted or carried. We find no merit in this contention.
Another ground relied on is that the order calling the election fixes Saturday, March 26th, as the date on which the election shall be held, while the certificate of the board of election commissioners shows that they canvassed the returns of an election held March 22, 1926. The *37 point is not well taken. The commissioners showed, by the certificate, the returns which they canvassed, and the mere statement that the election was held on the 22d, when it was in fact held on the 26th, is a very slight irregularity. The petition prayed that the election be fixed for the 22d, but the order calling the election fixed it for the 26th and in making up the certificate the election commissioners made an error as to the day on which the election was held.
Where graded common school districts have been established and in operation for a long time, public policy is against declaring the original organization fatally defective unless there is some insuperable obstacle in the way. Gosney v. Butler Graded School,
Judgment affirmed.