Belknap v. City of Louisville et al.
| Decision Date | 13 June 1896 |
| Citation | 99 Ky. 474 |
| Parties | Belknap v. City of Louisville et al. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.
R. H. BLAIN FOR APPELLANTS.
H. S. BARKER AND HUMPHREY & DAVIE FOR APPELLEES.
This suit was brought for an injunction to restrain the city of Louisville from issuing a million dollars of bonds for park purposes. There were two grounds alleged for the injunction — the first and main ground urged being that at the election of November 6, 1894, the question of the issue of bonds was submitted to the voters of the city, and that the proposition to issue did not receive the assent of two-thirds of the voters thereof, within the meaning of section 157 of the Constitution and section 2854 of the Kentucky Statutes.
It appears that at the election there were cast in the city of Louisville a total of 32,425 votes; that on the question of the issue of park bonds there were cast only 9,024 votes, of which 6,483 were cast in favor of the issue, and 2,721 against it.
Section 157 of the Constitution provides that "no county city, town, taxing district or other municipality shall be authorized or permitted to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, and any indebtedness contracted in violation of this section shall be void."
It is contended for appellants that the total number of votes cast at the election in favor of the bond issue being less than two-thirds of the whole number cast at the election, the bond issue failed to carry upon the ground that the section referred to requires that two-thirds of the total vote cast at the election shall be cast in favor of the issue.
Appellees contend that the words "two-thirds of the voters thereof voting at an election to be held for that purpose" restrict us to the consideration of the total number of votes cast for and against the question of issuing bonds, and that, therefore, more than two-thirds of the votes of those voting "for that purpose" were cast in favor of the bond issue. In other words, appellee's contention is that in the "election held for that purpose" only the votes cast for that purpose — for and against the bond issue — can be considered, and that no account can be taken of votes cast for other purposes, such as the election of officers, although cast on the same day.
Great stress was laid by appellee's counsel upon the argument that the legislature might have provided for the submission of the question of the bond issue at a special election held on a different day from the regular annual election, and at which no other question or election was determined; and, as at such special election only the votes cast upon the bond issue could be considered, though the vote might and probably would be much less than the vote cast at the regular annual election, therefore, "a question submitted to the voters" is not in any way dependent on or connected with an election of officers, although submitted on the same day and by means of the same ballots; and, as the Constitution left it to the legislature to determine whether the question should be submitted on the day of the general election or on some other day, the action of the legislature in fixing the submission for the same day as the general election did not commingle or make them interdependent. In support of this contention the case of Fidelity Trust & Safety Vault Co. v. Morganfield, 96 Ky., 564, is relied on. In that case it was held that the submission of an issue of bonds for municipal purposes might be upon a different day from that of the general election.
After careful consideration by a full bench a majority of the court are unable to adhere to the doctrine laid down in that opinion. Section 147 of the Constitution requiring elections by the people to be by secret official ballot provides that "the word `election' in this section includes the decision of questions submitted to the voters, as well as the choice of officers by them."
Section 148 provides that
It is otherwise provided as to elections for school trustees by section 155, which excepts those elections from the provisions of sections 145 to 154 inclusive, and as to elections for taking the sense of the people of a county, city, etc., as to whether liquors shall be sold therein by section 61, which provides "all elections on this question may be held on a day other than the regular election days."
In this section the word "election" is used in the sense provided in section 147, and this provision indicates clearly that the word is used in section 148 to include questions submitted to the people, for otherwise there would be no need for the permission given by section 61. By section 152 vacancies in the General Assembly may be filled at a special election.
It seems clear that the provision of section 148, that no more than one election each year shall be held in this State or in any city, town, district or county thereof, except as otherwise provided in the Constitution, applies to questions submitted to the voters, and the only provision otherwise in the Constitution in reference to such questions is the one in regard to the submission of questions as to the sale of liquor.
When it is considered that the manifest purpose of the framers of the Constitution, and of the people who ratified and gave it effect, was to put limitations upon the power of the local authorities in the matter of incurring debts, which would result in oppressive taxation, and even to limit the power of the people themselves improvidently to authorize the assumption of such obligations, the wisdom of the restriction of such elections to the day of the general election is evident. Not only is a much larger vote usually brought out on the occasion of the general election, but the people at large are usually better informed of the matters upon which they are entitled to vote by reason of the greater interest taken and the fuller discussion of such matters.
We come now to the main question presented in this record. By section 157 of the Constitution it is provided: "No city . . . shall be authorized or permitted to become indebted in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose."
The object of this provision was to limit the power of the local authorities and the people to burden themselves and their posterity with taxation, except upon full consideration and by the assent of the people given understandingly. In order to effect that object it was provided that no city should be authorized to become indebted in excess of the current year's revenue without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. It was sought to protect the people from their own improvidence and that of their local officials, and such a construction must be given to the Constitution as will give effect to its manifest purpose.
There could be but one election in the year except in the cases specially provided for. This question was to be submitted to the people at that election. It was one election, though held for several purposes, and was in no sense a collection of elections held on the same day. One of the purposes of the election was to determine this question, which, under authority of the Constitution, the statute and the ordinance passed in accordance therewith was to be submitted to the voters of the city. It was required that two-thirds of the voters of the city voting at such election should give their assent to the bond issue. Assent implies action, and is not mere failure to dissent. At the election held for the purpose of electing various officers, and for the additional purpose of determining the question of the bond issue, there were cast 32,425 votes, and of all those voters voting at the election held for those purposes but 6,483, less than one-fifth of the total number, gave their assent to the proposition to impose on the city of Louisville the burden of an additional debt of a million of dollars.
The authorities which, to a greater or less degree, bear upon this question are numerous and conflicting. It may be conceded that under a provision like the one under consideration it is not necessary that two-thirds of those entitled to vote should actually vote in favor of the proposition, and that as was said by the Supreme Court of the United States in Carroll County v. Smith, 111 U. S., 565,
To the same effect are many authorities cited by appellees, and the reason of the rule is well stated in People v. Wiant, 48 Ill., 263, as follows: "It was held in The People ex rel v. Warfield, 20 Ill., 160, that to give this provision of the Constitution a practical operation we must presume that it was the intention of the framers of that instrument that the voters would all vote, and that the majority of those voting should determine the question.
"To give it a different construction would involve an inquiry whether there were other voters of the county who had, from any cause abstained from voting; and this...
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Montgomery County Fiscal Court v. Trimble
...to those only who should vote upon the question. I adhere fully to the construction given to section 157 in the case of Belknap v. City of Louisville, supra. It seems to that the doctrine announced in the majority opinion will enable turnpike corporations, whose property becomes worthless, ......