Ahrens v. City of Louisville
| Decision Date | 23 January 1920 |
| Citation | 217 S.W. 907,186 Ky. 579 |
| Parties | AHRENS v. CITY OF LOUISVILLE. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.
Action by Theodore Ahrens against the City of Louisville. From a judgment for defendant, plaintiff appeals. Affirmed.
W. W Downing, of Louisville, for appellant.
Jos. S Lawton and Davis W. Edwards, both of Louisville, for appellee.
At an election held November 4, 1919, there was submitted to the voters of the city of Louisville the following question:
"Are you in favor of the issue by the city of Louisville of bonds for two million ($2,000,000) dollars, as provided in Ordinance No. 143, Series 1919, to be used under an act of the General Assembly of the commonwealth of Kentucky, and entitled 'An act to enable cities of the first class to construct an extension of their systems for the disposition of sewage,' approved May 18, 1912?"
The act referred to is a part of the charter of cities of the first class, and is found in subsection 16 of section 3037b, Ky Stats. An act of February 19, 1906 (Ky. Stats. §§ 3037b, subsections 1-15), authorized an issue of $4,000,000 of bonds by the city of Louisville for a similar purpose. The validity of the first act was sustained by this court in Miller v. City of Louisville, 99 S.W. 284, 30 Ky. Law Rep. 664.
In section 11 of the 1912 act it is provided that, in order to raise money for the construction of said sewer system the general council may adopt an ordinance submitting to the voters of the city, at the regular city election, the question whether bonds of the city shall be issued for the purpose of carrying out the work provided for. Pursuant to said act the general council of the city of Louisville, by an ordinance approved June 5, 1919, authorized an issue of $2,000,000 of bonds for the extension of its sewage system, the question of the issuance of the bonds to be submitted to the voters at the election to be held November 4, 1919.
Provision was made in said ordinance for the levying of an annual tax to pay the interest on said bonds and to create a sinking fund to pay the principal of the bonds at maturity. In the sixth section of the ordinance it is provided:
" * * * And the mayor is hereby authorized and directed to give public notice of the time, place and purpose of the election upon said question or proposition for at least ten (10) days (exclusive of Sundays) prior to the day of election, in each of the daily morning and afternoon papers published in the city of Louisville, in which notice this ordinance shall be embodied."
At the election held as aforesaid 15,591 votes were cast in favor of the bond issue, and 5,107 in opposition thereto; thus the proposition carried by more than the necessary two-thirds vote of those participating.
In this suit to enjoin the issue of said bonds it is contended: (1) That "the regular city election" referred to in the act means the next regular city election and no other. (2) In the question submitted to the voters the date of approval of the act authorizing the issue of bonds was given as May 18, 1912, when it should have been March 18, 1912, and this invalidates the bond issue. (3) That the provision as to the publication of the ordinance in section 6 thereof was mandatory, and the failure to meet the requirements of this provision is fatal to the validity of the bonds.
It is unnecessary to discuss a fourth point made by appellant as it is embraced within the three mentioned. A demurrer to the petition was sustained, plaintiff (appellant) declined to plead further, the petition was dismissed, and this appeal followed.
First. We find no merit in the contention that the words "at the regular city election" meant the next regular city election succeeding the passage of the act. At the time this act was passed the commissioners appointed under the earlier act of 1906 had not completed their duties, and to enable the city, in the event it was thereafter deemed expedient to further extend its system of sewage, the 1912 act was passed.
In the first act the date for holding the election was fixed, but, not knowing when it might be decided to submit a similar question, the Legislature purposely refrained from fixing any definite date, wisely leaving that to the executive and administrative officers of the city. It was not until 1919, at a time when members of the general council were to be elected, and therefore a regular city election, that the authorities deemed it advisable and necessary to submit the question to the voters. The intent of the lawmaker is to be found in the language employed, and we find no difficulty in ascertaining this intent.
The use of the word "the" in the statute did not mean any specific election other than a regular city election, and had the Legislature intended otherwise, as contended by appellant, it would have followed the same procedure as in the earlier act, and fixed the date thereof. Had "a," or "any," been substituted for "the," the statute could not have been plainer. It was the legislative intention to leave the matter of date to the discretion of the city authorities, the only qualification or limitation being that the question should be submitted to the voters, not at any election, but at any regular city election; that is, at any election at which city officers are to be chosen.
Second. It will be noticed that, in the question printed on the ballots, reference is made to the fact that the bonds were to be issued under an act of the General Assembly of the commonwealth of Kentucky entitled "An act to enable cities of the first class to construct an extension to their systems for the disposition of sewage," approved May 18, 1912. The recited date of approval was erroneous. The Legislature was not in session in May of that year. The act referred to was approved March 18, 1912, and it is contended this invalidates the bond issue. With this contention we cannot agree. The date of approval is not a part of the act. It was the only act of like import passed since 1906. The title of the act was properly stated, and the mere inadvertent use of "May" for "March" could not mislead the voters, nor could or would it in any wise invalidate or affect the issue of bonds thereunder. As a matter of fact, in the ordinance proper (section 1) the date of approval of the act is correctly stated, but in section 6, due to a mere typographical error, the approval is given as May 18, 1912, instead of March. Mere verbal inaccuracies or clerical errors in statutes, in the use of words, or in grammar or spelling, will be corrected by the courts, whenever necessary to carry out the plain intention of the Legislature. 36 Cyc. 1126, 1127; Endlich on Interp. of Statutes, § 319.
In Vincent v. Pacific Grove, 102 Cal. 405 36 P. 773, the same question was raised relative to a resolution pertaining to certain street work. In stating the date of the passage of the resolution, through mistake the year...
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