O'Bryan v. City of Owensboro

• Decision Date: 11 June 1902
• Citation: 113 Ky. 680,68 S.W. 858
• Parties: O'BRYAN, City Clerk, v. CITY OF OWENSBORO. [1]
• Court: Kentucky Court of Appeals

68 S.W. 858

113 Ky. 680

O'BRYAN, City Clerk, v. CITY OF OWENSBORO. ^[1]

Court of Appeals of Kentucky.

June 11, 1902

Appeal from circuit court, Daviess county.

"To be officially reported."

Action by the city of Owensboro against W. M. O'Bryan, city clerk, for a writ of mandamus. Judgment for plaintiff, and defendant appeals. Affirmed.

Chapeze & Wathen, for O'Bryan, city clerk. Wilfred Carrico and W S. Morrison, for Lancaster. G. W. Jolly, for appellee.

DU RELLE, J.

The appellee, city of Owensboro, through its council, took certain steps toward incurring a bonded indebtedness of $200,000 for the purpose of erecting or procuring a waterworks plant. Appellant, the city clerk, for the purpose of testing the validity of the $200,000 of bonds, refused to sign and seal them. The city instituted a proceeding for a mandamus against the clerk. The clerk filed a general demurrer to the petition, and, without waiving his demurrer filed an answer. The city filed a demurrer to the answer, and the court overruled appellant's demurrer, sustained the city's demurrer to the answer, and awarded a mandamus directing the clerk to sign and attest the bonds. Certain citizens and taxpayers tendered a petition, seeking to be made parties, and asking that this proceeding for mandamus be transferred to the equity side of the docket, and there consolidated with a suit to enjoin the issuance of the bonds. The court, on objection by the city, refused to allow the petition to be filed.

The first question to be disposed of is as to the propriety of the court's action upon the attempt of the taxpayers to intervene in this suit. In cases where the governing authorities of municipalities exceed their powers and violate the law, to the detriment of the taxpayers, the citizen has an unquestioned right to appeal to proper judicial tribunals for redress, or for the prevention of threatened injury. For appellee it is contended--and the trial court so held--that in a mandamus proceeding to compel a ministerial officer to perform an alleged duty, there is no common-law right of intervention by taxpayers; that such right, where allowed, is wholly statutory, and our statute (Civ. Code Prac. §§ 474-479, and section 29) does not permit it. High, Extr. Rem § 450a; Winstanley v. People, 92 Ill. 402; State v. Burkhardt, 59 Mo. 75; Harwood v. Quinby, 44 Iowa 385. There is much force in this contention. But whether this ruling be correct or not, the petition of the interveners presented the same objections to the bond issue which were sufficiently presented by the answer of appellant and it is unnecessary to pass upon that question, unless we find that some of those objections, or some additional one stated in the petition of the interveners, are valid; for, if the petition to be made parties presented no valid objection to the creation of the indebtedness, the refusal to file it was not prejudicial. The effect of the refusal to permit the petition to be filed was the same as sustaining a demurrer thereto.

The city of Owensboro, according to the federal census of 1900, has a population of 13,189, and is therefore a city of the third class, in accordance with section 156 of the constitution, which provides that to the third class shall belong cities with a population of 8,000 or more, and less than 20,000. That section also provides that the general assembly, in assigning cities and towns of the various classes provided for, "in the absence of other satisfactory information as to their population, shall be governed by the last preceding federal census in so doing." Section 157 provides a different classification of municipalities for taxation for other than school purposes, viz., that for all towns and cities having a population of 15,000 or more the tax rate shall not exceed $1.50 on the $100; for all towns and cities having less than 15,000, and not less than 10,000, such tax rate shall not exceed $1 on the $100. This section also provides that no 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." Section 158 provides a limitation upon the amount of indebtedness which may be incurred with the assent of two-thirds of the voters of a municipality, and forbids municipalities to incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding, for cities of the third class, having a population exceeding 15,000, 10 per centum of the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness, and for cities of the third class, having a population of less than 15,000, and cities and towns of the fourth class, exceeding 5 per centum of such value of the taxable property therein. This section contains, also, provisions for certain exemptions from these limitations, under conditions which do not here apply, and need not be considered.

It is conceded that the power of the voters to assent to the creation of an indebtedness of the amount here involved, and the power of the common council to levy a tax rate sufficient to provide for it, depend upon the question whether the city has a population of 15,000 or more. The constitution does not provide how the population shall be ascertained for this purpose. It does provide that, in order to classify them for the purposes of organization and government, the general assembly, "in the absence of other satisfactory information as to their population, shall be governed by the last preceding federal census." Nor is there any provision in the statutes for the ascertainment of the population for the purpose of fixing the tax rate, or the limit of indebtedness which may be incurred. The constitution, however (section 156), recognizes the fact that the general assembly may have other satisfactory information than the federal census, and may act upon it in the matter of classification for organization and government; and the statute, for those purposes, recognizes the authority of the city, through its council, to take steps to ascertain the population, "by a census taken pursuant to an ordinance of said city" (section 3264, Ky. St.). A similar provision for ascertainment of the population by census taken under an ordinance was held constitutional in Jernigan v. City of Madisonville (Ky.) 43 S.W. 448, 39 L.R.A. 214. The city council did pass an ordinance providing for the taking of a census, by which the population was ascertained to be 15,052, and an ordinance was adopted declaring that to be the population. These facts were set up in the petition.

But it is insisted for appellant that the denial in the answer that the population was over 15,000 makes an issue to be determined, and that the question is one for judicial determination. Under section 3264, the ascertainment of the population, which is essentially a subject of legislative inquiry, is vested in the local legislature, for the purpose of authorizing an application by the city to change its classification, and action by the general assembly based upon the result thus ascertained. It would seem clear that a mere averment that the population was not as great as thus ascertained, and by ordinance declared to be, would not authorize an interference with an application for change of class. That would require the averment of fraud or mistake. The result declared by ordinance being, with this limitation conclusive for purposes of state legislation, is it not also equally conclusive for other matters within the city's legislative power,--the fixing of the tax rate and the creation of bonded indebtedness, as to which the council alone has power to act? The case of Beard v. City of Hopkinsville, 95 Ky. 244, 24 S.W. 872, 23 L.R.A. 402, 44 Am.St.Rep. 222, cited as sustaining the negative of this proposition, is not in point. There the amount of population of the city was conceded. The question was whether the constitutional inhibition applied to the city, as a self-executing provision, although the legislature had not yet assigned Hopkinsville to the class to which it properly belonged; and it was held that the prohibition of excessive indebtedness was self-executing, and applied to cities of the prescribed population, without awaiting the legislative assignment. The assignment by the legislature depended upon the same fact as the constitutional limitation of indebtedness. In the nature of things, the ascertainment of the population of a city is not a mere matter of clerical computation. A witness cannot, by computation, ascertain it. Nor can a witness determine it by examination. It is a thing which can be determined only by means of machinery provided by the state or local l...