144 S.W.2d 502 | Ky. Ct. App. | 1940
Reversing.
This suit was brought to test the validity of $17,000 of bonds proposed to be issued by the board of trustees of the town of Loyall, a municipal corporation of the sixth class.
The board of trustees of the town adopted an ordinance providing for an election to be held on November 7, 1939, at which was submitted to the voters the question whether an indebtedness should be incurred in the amount of $17,000 for the purpose of erecting a concrete bridge over the Cumberland river within the corporate limits of the town. At the election more than two-thirds of the voters voting on the proposition voted in favor of incurring the indebtedness. The Works Progress Administration of the Federal Government agreed to grant assistance in the construction of the bridge and to pay all costs in excess of $17,000. The approximate cost of the bridge will be $48,000. Thereafter the board of trustees passed an ordinance providing for the issuance of $17,000 general revenue bonds of the town of Loyall, and providing for the levying of taxes to pay the same. This action was then brought against Ely Howard, a *235 resident taxpayer of the town, to test the validity of the bond issue and to obtain the court's approval. An order was entered authorizing Howard to defend for and on behalf of all citizens and taxpayers of the town.
The petition alleged that at the time of the passage of the ordinance providing for the issuance of the bonds to the amount of $17,000, the total of all other indebtedness of the town was $6,000, and that the valuation of taxable property in the town as shown by the assessment for the year 1938 was $765,850 and by the assessment for the year 1939 was $776,750, and that the total indebtedness of the town, including the bridge bonds, would not exceed the constitutional limitation of 3 per cent. of the value of taxable property in the town. The circuit court adjudged that the indebtedness of $17,000, evidenced by the bridge bonds of the town, was lawfully created and did not exceed the constitutional limitation of indebtedness, and that when issued the bonds would constitute valid and binding obligations of the town. It appears that if the assessment for the year 1938 is used as a basis for calculating the amount of indebtedness that may be incurred, the issuance of $17,000 of bonds will exceed the amount permitted by Section 158 of our Constitution by a few dollars, but if the assessment for the year 1939 is used the indebtedness will not exceed the amount permitted by the Constitution. Issuance of the bonds was not authorized until after the assessment date for the year 1939, and necessarily their sale will be made subsequent to July 1, 1940, the 1940 assessment date. The 1939 assessment therefore will control, since Section 158 of the Constitution provides that the amount of indebtedness permitted to be incurred must be estimated by the assessment next before and the last assessment previous to the incurring of the indebtedness.
In determining whether an indebtedness exceeds the constitutional limit, the time the bonds were sold is controlling and not the time of the election. Boll v. City of Ludlow,
For the reason indicated, the judgment is reversed.