104 Ky. 540 | Ky. Ct. App. | 1898
delivered the opinion oe the court.
'After a favorable vote upon a submission of the question to the voters of Nicholas county at the regular election in November, 1896, whether they were “in favor of free turnpikes and gravel roads,” in pursuance of the act of March 17, 1896, the fiscal court in November, 1897, entered into a contract with the Maysville & Lexington Turnpike Road Company, by which it purchased, at the price of $23,000, payable in yearly installments of $2,000 each, some fifteen miles of the road situated in Nicholas county. Thereupon Wiggins, a taxpayer of the county, for himself and others, instituted his action to enjoin the levy of any tax on behalf of the contract of purchase, and to have the contract declared void, on the following grounds: 1. Notwithstanding the authority to make the contract is conferred in the act in question, the Constitution, by section 179, prohibits counties from buying turnpikes or gravel roads from any company, association, or corporation; and therefore the act of March, 1896, is unconstitutional. 2. The contract incurs an indebtedness in an amount exceeding, in the year 1897, the income and revenue provided for that year; and no election has been held to obtain the assent of the voters of the county, as provided in section 157 of the Constitution.
The first contention is easily disposed of. Section 179' of the Constitution reads as follows: “The General Assembly shall not authorize any county or subdivision thereof, city, town or incorporated district, to become a' stockholder in any company, association or corporation, or
The second ground .presents more difficulty. Section 157 of the Constitution precludes the county from becoming indebted in an amount exceeding, in any year, the income and revenue provided for such year, without a vote of the people, as prescribed in the section. It is admitted that no vote has been taken under this section, and it is left to us only to determine from the pleadings whether such an election is shown to be necessary, and that depends upon whether, by the creation of such a debt, the county will become indebted beyond the constitutional limit fixed in this section. It is to be noticed that it is not contended that the aggregate debt of the county is in excess of the absolute limitation of indebtedness prescribed in section 158. Admittedly, when that limit is reached, no further indebtedness can be incurred in any event or authorized by any vote. With reference to this debt of $23,-000,' the petition avers “that said indebtedness is an amount exceeding, in the said year, 1897, the income and revenue provided for such year by said court, which revenue is 34 cents on the $100 worth of property in said county, and levied for the following purpose's: 15 cents for the sinking fund and to meet outside indebtedness, and 4 cents to subscription to the Barefoot Turnpike Road Co., and 15 cents for current expenses.” These are the only averments in the pleadings on this subject, and the averment that the indebtedness created by purchase of the turnpike road — the indebtedness of $23,000 — is in an amount in excess of the income and revenue provided for for that year is specifically denied by the answer. This is claimed by Wiggins to be a sham plea, but it is altogether probable that the denial is true. The income and revenue
It is suggested by7 counsel for appellant that, as the proposition to have free turnpikes and gravel roads carried by a two-thirds vote, the indebtedness incurred by the purchase is not inhibited by the Constitution, under the section we have been considering. It is manifest, however, that a vote oh the question of having such roads free is not a A7ote to increase the indebtedness bey’ond the constitutional restriction; and we need not, therefore, inquire into the effect of the conceded fact that “free turnpikes” carried in Nicholas county by a majority of two-thirds of those voting on the question, and not by two-thirds of all those A7oting at the general election. The act only required a majority of those voting on the question, and, although a majority of two-thirds of those voting on the question voted for free turnpikes, the question of incur