Board of Education of Winchester v. City of Winchester

• Decision Date: 30 May 1905
• Citation: 120 Ky. 591,87 S.W. 768
• Parties: BOARD OF EDUCATION OF WINCHESTER v. CITY OF WINCHESTER.
• Court: Kentucky Court of Appeals

87 S.W. 768

120 Ky. 591

BOARD OF EDUCATION OF WINCHESTER v. CITY OF WINCHESTER.

Court of Appeals of Kentucky.

May 30, 1905

Appeal from Circuit Court, Clark County.

"To be officially reported."

Action by the board of education of Winchester against the city of Winchester. From a judgment for defendant, plaintiff appeals. Reversed.

J. M Stevenson, for appellant.

Pendleton & Bush, for appellee.

HOBSON C.J.

The board of education of the city of Winchester, Ky. having by resolution requested the mayor and board of council of the city to incur a debt not exceeding $15,000 for the purpose of erecting and equipping additions to the existing school buildings, and to issue bonds therefor, the council adopted an ordinance submitting the question of incurring the debt to the people at the next regular election, which was held on November 8, 1904. At that election 633 votes were cast in favor of incurring the indebtedness, and 300 were cast against the proposition. The highest number of votes cast in the election was 1,421. It will be thus seen that more than two-thirds of the votes cast on the proposition were in favor of it, but that not two-thirds of the electors voting at the election voted for it. Section 157 of the Constitution in part provides: "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 the purpose; and any indebtedness contracted in violation of this section shall be void." In Belknap v Louisville, 99 Ky. 474, 36 S.W. 1118, 34 L. R. A. 256 59 Am. St. Rep. 478, it was held -- construing this provision of the Constitution--that the assent of two-thirds of the voters actually voting at the general election when the question is submitted is necessary to carry it, and not merely two-thirds of those who vote upon the question. But in Montgomery County Fiscal Court v. Trimble, 104 Ky 629, 47 S.W. 773, 42 L. R. A. 738, this case was overruled, and it was held that the assent of two-thirds of the electors voting on the subject is sufficient to carry the proposition, without regard to the number of votes cast for other purposes at the election. In the Belknap Case it was also held that additional restrictions might be imposed, and that, aside from section 157 of the Constitution, the statute under which the question was submitted might require the assent of more than two-thirds of the electors voting at the election, and not merely of those voting on the question. In that case it was further held that the statute then before the court required the assent of more than two-thirds of all the electors voting at the election. This part of the opinion was not overruled in the Trimble Case, as the statute there only required the assent of more than two-thirds of those voting on the subject. It is insisted for the appellee that the statute and ordinance under which the vote here in contest was taken are substantially the...