195 Ky. 382 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
This was an action by a citizen and taxpayer of Livingston county to enjoin the fiscal court and its agents from issuing, offering or selling $50,000.00, par value, in amount of the bonds of the county, which were alleged to have been authorized by the votes of a majority of the legal voters of the county, cast at an election held on the 31st day of January, 1920. The election was a proceeding under section 4307, Kentucky Statutes, and section 157a of the Constitution for the purpose of obtaining the consent of the electorate of the county, to the making and and selling of $200,000.00 of county bonds, the proceeds to be applied to the building, construction and reconstruction of public roads and bridges of the county, as authorized by section 157a of the Constitution. The necessary majority of the legal voters appearing to have given their approval to the proposition, on the 3rd day of November, 1921, the fiscal court made an .order directing that $50,-000.00 in amount of the bonds authorized, be offered and sold for the purpose of providing the means for the construction of the road designated as the Ohio River Federal Aid. Highway, which runs- through the_ county, and, also, a road designated as the Central Highway from Sonithland to Iuka, which are points in the county. The bonds have not yet been executed or sold, and to- restrain the fiscal court from so doing, the appellant by his petition presents many alleged reasons by virtue of which he contends that the bonds were-never legally authorized; and if authorized, the purpose to which the proceeds of the -bonds directed to be sold are to be applied is illegal, and the fiscal oourit is without authority to so appropriate the proceeds. The circuit court sustained a general demurrer to the petition as amended and dismissed it, 'and from the judgment the plaintiff in the action has appealed.
The objections to the validity of the election upon which the authority to issue the bonds depends, will be considered in their order.
(b) It is further contended that the petition asking the election, contained conditions not authorized by law, and that the county court should have rejected the petition, and refused to order the election, or, else, should have embraced all of the conditions upon which the issual of the bonds was sought, in the order calling the election, which latter thing, it is averred, the court did not do. This argument seems to go to the extent of insisting that the conditions contained in the petition being illegal, the county court was without authority to make the order calling the election with the proposition embracing the conditions, and if it ignored the conditions in the order, the submission was unauthorized.' The petition requested the county court to submit to the voters the proposition to authorize the fiscal court' to issue and to sell the bonds, “the proceeds to be used in the construction of the proposed federal highway known as the Ohio river route, through said county from McCracken county to Crittenden county, crossing the Cumberland river at Smithland; the construction of the county seat connection with Lyon county at Iuka; with Marshal county at Tennessee river; with Pope county, Illinois, at Berry ferry; with Hardin county, Illinois, at Carrsville. ’ ’ It then provided that if any funds were left over from the construction of the roads mentioned, they should be applied to other designated roads in the county. True, the statute, section 4307, Kentucky Statutes, does not provide that freeholders seeking the submission of the question of creating an indebtedness in the way of bonds for the building, construe
(c) The fact that the petition filed in the county court seeking the submission was not dated is immaterial, as the statute does not require it to be dated, nor is there any requirement that the petitioners attach a date to their signatures. The date of the petition is when it is filed in the county court.
(d) The petition did not name any day upon which it was desired that the election should be held. It did request that the election be held at the earliest possible date upon which under the law it could be held. The court ordered it held at the earliest possible date, which under the law it was authorized to be held fixing a-date. It has
(e) The petition to the county court consisted of twenty-four separate petitions, exactly the same in their contents, and neither one of them was subscribed by as many as one hundred and fifty freeholders, although all of them contained the signatures of several hundred freeholders, and this fact is referred to as a fatal defect in the proceedings. The signatures to the various copies of the petition, were the requisite number. However, under such facts, the County court may treat all the petitions as constituting one, and the various copies as being parts of the one petition necessary, and when all of them are subscribed by the requisite number of freeholders and legal voters, jurisdiction is conferred upon the court to order the election to be held. Hopkins v. Dickens, etc., 188 Ky. 377; Smith v. Patton, 103 Ky. 444; Tousey v. DeHuy, 23 K. L. R. 458.
(f) The order of the county court providing for the election directed the sheriff to advertise the election and the objects of it for thirty days next before the day upon which it was to be held in a newspaper having the largest circulation in the county, and by four printed handbills posted in each precinct, and one at the court house door. After the election the sheriff made a report of his actions to the county court, and while the writing returned by him stated that he posted the written handbills as directed and required, he made no mention of having advertised the election in the newspaper. The petition alleges that at that time a newspaper was published in the county. The plaintiff and appellant does not aver that the notice of the election and its purpose was not published in the newspaper, nor does he allege that the election was not advertised in any way required by law, but contents himself with averring that if it was done, only, in the manner in which the sheriff reported, that the advertising was insufficient. The order did not require the sheriff to make any report, nor is any report by the sheriff required by the statute. In the instant case, it was a voluntary act upon his part, and does not amount to evi
(g) The order of the county court providing for the election, directed the county clerk as to his duties, including the questions to be printed upon the ballots, but failed to direct him to have the word “yes” and the word “no” following the question, with a square opposite each wherein the voter might indicate his wish by stamping with the stencil: The statute directs the manner in which the ballots for such elections shall be prepared, and the order of the county court directed the clerk consistently with his duties, so far as the order made directions. In the absence of any averment, or showing to the contrary, the clerk will be conclusively presumed to have prepared the ballots in accordance with the law upon the subject. That he did so, there can be no doubt, as the certificate of the election commissioners shows that so many voted “yes” and the others “no.”
(h) It is insisted that because neither the election commissioners nor the county court adjudged that the result of the election was the assent of the required number of electors, voting, that the debt should be incurred and bonds issued therefor, that the proceedings were so irregular that no authority was conferred to issue and sell the bonds. It is not a duty of the election commissioners, nor have they the power to decide that any such election and proposal has been assented to or denied. Their only duty is to certify the result of the election — that is how many votes were cast for the proposal and how many against it. Denton v. Pulaski, 170 Ky. 33. Neither does the county court have any duty in the premises. An adjudication by it that the' proposal had been assented to or rejected, would be without any force or virtue. The fiscal court, alone, has any duty to perform after the election commissioners have certified the result of such election. The certificate of the election commissioners is, in substance, to the effect that they canvassed the returns of the election for the purpose of taking the sense of the voters as to “whether they were in favor of issuing bonds to the amount of $200,000.00
(i) The election commissioners did not send to the fiscal court a certificate of the result of the election, and it is claimed that such fact is fatal to its validity. The statutes governing such elections, nor elections generally, make such requirement. The commissioners make a certificate of the result and same is recorded in a book containing their proceedings, and of which the clerk of the fiscal court is custodian, and which is open for the inspection of the court or any citizen. It would probably help the apparent regularity of the proceedings, if the commissioners would certify the result of such elections to the fiscal court, and that court should cause it to be spread upon its records, but there is no statute requiring it, but the evident prudence of such an act frequently causes it to be done. In the instant case, a certificate of the result of the election, signed by the election commissioners, was sent to the county court, and by its order spread upon its records.
The foregoing constitute the grounds upon which it was contended that the election was invalid, and did not give authority to the fiscal court to issue and sell the bonds, but the grounds, as appears, are all insufficient. Upon other grounds it is insisted that for reasons other than the invalidity of the election the bonds can not be lawfully issued and sold, and these latter will now be considered.
(1) It is averred that $200,000.00 is more than five per centum of the value of property in the county assessed for county taxation purposes. Section 157a of the Constitution limits the amount of bonds which may be voted, issued and sold by the authority of that section to five per centum of the assessed value of the property of -the county, but there is the further limitation that the amount of the bonds which can be issued must be limited to such an amount that the twenty cent tax authorized by that section will pay the interest and provide a sinking fund which will liquidate the bonds within the time wherein the bonds will become due, and the bonds may not run less than five nor more than thirty years, during which time they may be redeemed at the pleasure’ of the fiscal court. Bird v. Asher, 170 Ky. 726. The fiscal court
(2) The order of the fiscal court directing the sale of the bonds designates as its purpose the intention to apply the. proceeds to aid in construction of the “Ohio River Route Federal Aid Highway” and the highway from Smithland to Iuka, and it is insisted that there is no authority on the part of the fiscal court to appropriate funds to aid in the construction of a road belonging to a primary system and which the state and federal governments have undertaken, and that such construction is not an obligation of the county. The right to issue the bonds in controversy was assented to by the voters among other things for the purpose of giving aid to the construction of the roads mentioned, and under sections 4356t-3 and 4356t-5, Kentucky Statutes, authority is given to a county to contribute to a project which the state and federal governments have undertaken.
(3) Section 157a of the Constitution provides that an election held under that section with the result favorable to incurring the indebtedness, carries with it the power
The judgment is therefore affirmed.