Lamaster v. Wilkerson

• Decision Date: 19 April 1911
• Parties: LAMASTER v. WILKERSON et al.
• Court: Kentucky Court of Appeals

136 S.W. 217

143 Ky. 226

LAMASTER v. WILKERSON et al.

Court of Appeals of Kentucky.

April 19, 1911

Appeal from Circuit Court, Henry County.

Action by Z. H. Lamaster against J. T. Wilkerson and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Turner & Turner, for appellant.

Moody &amp Barbour, for appellees.

SETTLE J.

This action was brought by appellant, a resident citizen and taxpayer of graded white, common school district No. 30 of Henry county, in his own behalf and for other citizens and taxpayers of the district too numerous to be made parties against appellees, composing the board of trustees of the district, to restrain them by injunction from issuing and selling certain bonds to the amount of $15,000 for constructing and equipping, at New Castle, in the district in question, a building in which to conduct the graded white common school of the district; the question as to whether the bonds should be issued having, as alleged in the petition, been determined in favor of their issuance by vote of more than two-thirds of the electors of the district at an election held by order of the board of trustees, and after 10 days notice, February 4, 1911; there being 177 votes cast in favor of issuing the bonds, and 46 votes in opposition thereto.

The result of the election was duly certified by the officers thereof to the board of trustees, and the latter thereupon caused the bonds to be issued, and were preparing to sell them when appellant instituted his action.

The resolution of the board of trustees, ordering the election, provided for the levying of an annual tax, within the constitutional limit, upon the property of the residents of the district for raising an amount of revenue sufficient to pay the semiannual interest on the bonds as due, and a sinking fund for their redemption at maturity.

Appellees filed a demurrer to the petition, which the circuit court sustained, and, appellant refusing to plead further, judgment was entered, dismissing the action at his cost, from which he appeals.

Complaint is made of the judgment on two grounds: First. That the posters giving notice of the election were not signed by the members of the board of trustees, and that their names appearing thereto were merely printed, instead of being signed in their own handwriting. Second. That the clerk and one of the judges of the election were not authorized to act as such, because they were illegally appointed by only two of the five members of the board of trustees. For the foregoing reasons, it is argued by counsel for appellant that the election was void, and therefore the bonds are invalid and should not be sold.

Neither of these contentions is sound. As to the first, it would perhaps be sufficient to say that the posters giving the voters of the district notice of the time, place, and hours of the election were doubtless printed from the original notice or manuscript prepared by the trustees, to which each of them will be presumed, in the absence of allegation and proof to the contrary, to have attached his official signature. If this view of the matter should be rejected, there is still the presumption, altogether reasonable and legal, that the trustees, considering the fact that it is admitted they caused the notice to be printed and posted, authorized the printing of their names on them, and adopted them as their signatures.

In either case there was a substantial compliance with the statute (section 4481, Ky. Sts. [section 5758, Russell's St.]), which requires that the election notices be signed by the trustees.

In legal contemplation "to sign" means to attach a name, or cause it to be attached, by any of the known methods of impressing the name on paper, with the intention of signing it. Words and Phrases, 6512.

In 36 Cyc. 448, we find this statement of the law on the subject: "Signatures adopted by persons are sufficient to give validity to instruments, even though typewritten or printed." Herrick v. Merrill, 37 Minn. 6, 33 N.W. 849, 5 Am. St. Rep. 841.

Appellant's second contention, though not difficult of solution, will require fuller discussion than the first. It appears from the averments of the petition that three of the five trustees of graded white, common school district No. 30 in due time appointed officers, consisting...