Wilkerson v. City of Lexington

• Citation: 188 Ky. 381,222 S.W. 74
• Parties: WILKERSON v. CITY OF LEXINGTON ET AL. CHINN v. CITY OF LEXINGTON ET AL. DAVIS v. CITY OF LEXINGTON ET AL.
• Decision Date: 04 June 1920
• Court: Court of Appeals of Kentucky

222 S.W. 74

188 Ky. 381

WILKERSON v. CITY OF LEXINGTON ET AL.

CHINN v. CITY OF LEXINGTON ET AL.

DAVIS v. CITY OF LEXINGTON ET AL.

Court of Appeals of Kentucky.

June 4, 1920

Appeals from Circuit Court, Fayette County.

Consolidated suits by H. Freeman Wilkerson, by A. Coleman Chinn, and by John B. Davis against the City of Lexington and others to enjoin certain bond issues. A demurrer to the answer was overruled in each case, and judgments rendered, denying an injunction and dismissing the petition, and petitioners appeal. Affirmed in each case.

Wallace Muir, of Lexington, for appellants.

Wm. H Townsend, Harry B. Miller, and James A. Wilmore, all of Lexington, for appellees.

CLAY C.

These three appeals have been consolidated and will be considered in one opinion.

The suit of H. Freeman Wilkerson against the city of Lexington and its officers was brought for the purpose of enjoining a bond issue of $500,000 to provide funds for the purchase of a site or sites, and erection thereon of a building or buildings, to be used as a city hall and auditorium, and for other public purposes. The suit by A. Coleman Chinn was to enjoin a bond issue of $300,000 to provide funds for the purpose of defraying the expenses and cost of extending Vine street, from Limestone street to Hanover avenue, and Short street, from Wilson street to Russell avenue, and to construct a subway at the intersection of West High street with the railroad of the Southern Railway System. The suit by John B. Davis was to enjoin a bond issue of $400,000 for school purposes. In each case the city filed a comprehensive answer, setting forth all the steps leading up to each issue and giving a complete financial statement of the city showing in detail all the indebtedness theretofore existing the amount of indebtedness proposed to be incurred, together with the prior tax rate and the rate that would have to be levied in order to provide a sinking fund and pay the proposed indebtedness. In each case the demurrer to the answer was overruled, and a judgment was rendered, denying the prayer for an injunction, and dismissing the petition.

Lexington is a city of the second class, with a population of more than 40,000, and has adopted the commission form of government. Cities of the second class are given authority to issue bonds by section 3069, Kentucky Statutes, which is as follows:

"The general council shall not expend any money in excess of the amount annually levied, collected or appropriated for any special object: Provided, if, in any year, the general council shall deem it necessary to incur any indebtedness, the payment of which cannot be met without exceeding the income and revenue provided for the city for that particular year, it shall, by ordinance, order an election by the qualified electors of the city to be held, to determine whether such indebtedness shall be incurred. Such ordinance shall specify the amount of indebtedness proposed to be incurred, the purpose or purposes of the same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund, as herein provided. Such ordinance shall be published for at least two weeks just preceding the election in the official newspaper in and for such city, or by posting written or printed copies thereof at three or more public places in such city, if there be no such official newspaper. Upon filing by the city of a certified copy of an ordinance ordering such an election with the county clerk of the county in which such city is located, thirty days prior to any regular election, it shall be the duty of the county clerk to cause to be printed upon the ballots, to be used in the city precincts of such county at such election, the question of the issuance of bonds by said city as proposed by such ordinance. The expenses thereof shall be paid as other election expenses are paid. The election shall be held in the manner provided by general law for submitting public measures to a vote of the people, and shall be held at the same time and place, and in the same manner, and by the same officers as the regular election of that year. The votes on said question shall be canvassed and certified by the election officers in the same manner as votes cast in the regular election. It shall be the duty of the county board of election commissioners to canvass the returns of the election on said question, and certify the result thereof at the same time and in the same manner as the returns of the regular election.

If, upon a canvass of the votes cast at such election, it appears that two-thirds of all the qualified voters of said city, voting on said question, shall have voted in favor of incurring such indebtedness, the general council may incur such indebtedness and issue bonds of the city in evidence thereof, and it shall be the duty of the general council to pass an ordinance providing for the mode of creating such indebtedness and of paying the same. But such indebtedness shall not, in any event, exceed the limit provided in the Constitution for cities of the second class. In such ordinances provision shall be made for the levy and collection of an annual tax upon all real and personal property subject to taxation within such city, sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within a period of not more than forty years from the time of contracting the same. It shall be the duty of the general council in each year thereafter, at the time at which other taxes are levied and collected, to levy and collect a tax sufficient for such purpose, in addition to the taxes by this chapter authorized to be levied. Such tax, when collected, shall be kept in the treasury as a separate fund, to be inviolably appropriated to the payment of the principal and interest of such indebtedness. Any member of the general counsel who shall knowingly vote for any appropriation of money, or for the making of any contract in violation of this act, or any officer of the city who shall knowingly do any act to impose upon the city any pecuniary liability in excess of the authority in this act limited, shall be guilty of a misdemeanor, and, upon conviction, be punished by a fine of not less than one hundred nor more than one thousand dollars, or imprisonment in the county jail not less than one month nor more than one year, or by both such fine and imprisonment."

On September 2, 1919, there was introduced Ordinance No. 1611--

"providing for submitting to the qualified voters of the city of Lexington the proposition of incurring an indebtedness of $500,000, and issuing bonds of the city therefor, to provide funds for the purpose of the purchase of a site, or sites, and the erection of a building, or buildings thereon, for the purpose of being used as a city hall, an auditorium or for other public purposes."

This ordinance, in its completed form, remained on file for the period of one week. On September 9, 1919, it was passed by the unanimous vote of the commissioners, and was approved by W. H. McCorkle, the vice mayor; the regular mayor being so ill that he was unable to attend to business. It was then published in the official newspaper. The ordinance specified the amount of indebtedness proposed to be incurred, the purpose of same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund. It further provided for the issuing of bonds and the taking of the sense of the voters thereon at the regular election on November 4, 1919. On October 17, 1919, the ordinance was published in the Lexington Leader, the official newspaper of the city, and in each issue of the paper from said date to November 3, 1919, inclusive. A certified copy of the ordinance was delivered to the county clerk of Fayette county 30 days prior to the election. On motion of the city an order was entered by the Fayette county court on September 23 1919, ordering and directing the sheriff of said county to open a poll at each voting precinct in the city at the regular election to be held on November 4, 1919, for the purpose of ascertaining the will of the voters of said city on the issuing of said bonds, and to advertise said election for at least 15 days in some daily newspaper of the city, and also by printed handbills posted in one or more conspicuous places at each precinct of the city and at the courthouse door. The question was placed on the ballot in proper form and duly submitted at the November election. The vote in the affirmative was 2,416, while the vote in the negative was only 851. On December 8, 1919, the board of commissioners enacted Ordinance No. 1643, providing for the incurring of the...