143 Ky. 140 | Ky. Ct. App. | 1911
Opinion of the Codet by
Appellant, a resident citizen and taxpayer of the ap-pellee, City of Dawson Springs, sought in this action to prevent by injunction the issuance and sale by the city of $10,000.00 of bonds for the construction and maintenance of sewers within its corporate limits. Appellee filed a demurrer to the petition which the circuit court sustained, and appellant having failed to plead further the petition was dismissed. Appellant complains of the judgment manifesting these rulings and by this appeal seeks its reversal.
It appears from the petition that Dawson Springs is a-city of the fifth class and that the question of whether the indebtedness of $10,000.00 should be incurred by it for constructing sewers and bonds to that amount issued, was by an ordinance duly adopted by the city council and published notice submitted to the decisión of the qualified voters of the city at an election held November 8, 1910; and that 161 votes were then cast in favor of the proposition to incur the indebtedness and issue the bonds and 69 votes against it. Thereafter the bonds were duly issued and appellee was preparing to sell them when restrained by the temporary injunction obtained by appellant.
The bonds are to become due in twenty years, but may be redeemed in five years by appellee. It is insisted for appellant that the election was illegally held and that the bonds are invalid for the following reasons: 1st, Because the ordinance ordering the election did not, as required by section 3637, sub-section 3, Kentucky Statutes, provide that the notice of election specify “the amount of of money necessary to be raised annually by taxation for the creation of a sinking fund to pay said indebtedness ’ ’
It is true that the initial ordinance referred to did not, as would have been proper, provide for raising annually by taxation an amount necessary to pay the interest on the bonds and provide a sinking fund to retire them at maturity, but it is not alleged that the notice of the election did not specify the amount necessary to be raised annually by taxation for the purposes mentioned, and in .the absence of such 4n allegation we will not assume that the notice was deficient in the respect referred to. Tipton v. City of Shelbyville, 139 Ky. 541; Morgan v. City of Frankfort, 135 Ky. 178. It appears from the aver-ments of the petition and the copy of the ordinance filed therewith, that subsequent to the election and before the issuance of the bonds appellee’s city council duly adopted an ordinance providing for the levy of an annual tax of 50 cents on each $100.00 worth of taxable property in the city for the purpose of paying the semi-annual interest ito become due on the bonds and creating a sinking fund for retiring them at maturity, and while this provision should have been embraced in the initial ordinance, we think the fact of its having been done by the last ordinance was a substantial compliance with the law.
In O ’Bryan v. City of Owensboro, 113 Ky. 680, a vote had been taken upon the question of whether bonds should be issued by that city, but the ordinance providing an annual tax for the payment of the interest and the creation of a sinking fund for the ultimate extinction of the debt, was not adopted by the city council until after he election; and we held in that case that the adoption of the ordinance subsequent to the election was sufficient, inasmuch as section 159 of the Constitution under which the city derived the power to hold the election and issue the bonds was self executing, and therefore the legislative authority conferred by section 3637, sub-section 3, of the statute, supra, was unnecessary.
The second contention of appellant is without force. We have repeatedly held that the meaning of section 157 of the Constitution is that the assent of two-thirds of
Appellant’s third contention is likewise untenable. It is true that the last ordinance had not been published as required by law when appellant’s action was instituted, but it is conceded that it was shortly thereafter and in due course published in the manner provided by the statute, and that its publication was made before the bonds were issued. The ordinance was, therefore, published in substantial compliance with the statute.
The record presenting no reason for our holding the election or bonds invalid, the judgment is affirmed.