Bryant v. Lang

• Court: Kentucky Court of Appeals
• Writing for the Court: SETTLE, J.
• Citation: Bryant v. Lang, 197 Ky. 480, 247 S.W. 756 (Ky. Ct. App. 1923)
• Decision Date: 30 January 1923
• Parties: BRYANT ET AL. v. LANG, COUNTY JUDGE, ET AL.

247 S.W. 756

197 Ky. 480

BRYANT ET AL. v. LANG, COUNTY JUDGE, ET AL.

Court of Appeals of Kentucky.

January 30, 1923

Appeal from Circuit Court, McCracken County.

Suit by Z. C. Bryant and another against James M. Lang, as County Judge, and others From a judgment dissolving a temporary injunction and dismissing the petition, plaintiffs appeal. Affirmed.

Mocquot Berry & Reed, of Paducah, for appellants.

Eaton &amp Boyd, Nichols & Nichols, and F. E. Graves, all of Paducah for appellees.

SETTLE J.

Since some time in the year 1918, Paducah, a municipal corporation, made by legislative enactment a city of the second class, has, as permitted by the laws of this state, been conducting its municipal government, business, and affairs under what is known as the commission form of government. At the regular election held November 7, 1922, however, there was submitted, by an order of the McCracken county court to the determination of the voters of the city, the question as to whether or not it should abandon the commission form of government. The election resulted in favor of the abandonment of that system; 2,510 votes being cast for and 828 against its abandonment.

Following the canvass, certification, and return of the ballots and votes by the officers of the election, this action was instituted in the McCracken circuit court by the appellants (plaintiffs in the court below) Z. C. Bryant and Mel Byrd, resident citizens and taxpayers of the city of Paducah, against the appellees (defendants in the court below) James M. Lang, judge, and John W. Polk, clerk, of the McCracken county court, attacking the legality of the election and seeking to enjoin the appellee Lang, as county judge, from directing the entering of record in the county court of an order declaring the result of the election, and the appellee Polk, as clerk of that court, from entering such order, or by means of a copy thereof or otherwise certifying the result of the election to the clerk of the city of Paducah.

Upon the filing of the petition, the circuit court, on the appellants' motion and following their execution of the necessary bond, issued a temporary restraining order against the appellees, staying any action on their part in the matter of entering the order declaring the result of the election and certifying the same to the city clerk, until a later date fixed by the court for the appellants to make a formal application for the injunction prayed in their petition. When that time arrived, the appellees filed a demurrer to the petition as then amended and, without waiving same, also filed an answer traversing all the averments of the petition, as amended, setting forth the appellants' grounds of attack upon the validity of the election; and after the filing by the parties of a written statement of facts upon which they had mutually agreed, the case was submitted to the court upon the appellants' motion for an injunction, the appellees' motion to dissolve the temporary restraining order previously granted, and also upon the pleadings and agreed facts for a trial and final decision and judgment upon the merits. Thereupon the court dissolved the temporary restraining order, overruled the appellants' motion for an injunction, and dismissed their petition, thereby sustaining the legality of the election in question. The latter complain of the judgment entered in pursuance of those rulings, hence, the present appeal.

The entire evidence heard in the court below is contained in the agreed statement of facts found in the record, from which it is apparent that the only question in dispute between the parties in that court and now on the appeal is as to whether there was, prior to the election, such newspaper publication of the order of the county court calling the election as was required by the statute. It is insisted by the appellants that the newspaper publication as made did not comply with the provisions of the statute, and that, in holding to the contrary, the circuit court committed reversible error, while the appellees maintain that such publication fully met the requirements of the statute and, consequently, that the ruling of the circuit court to that effect was free of error.

The entire law of this state, as originally enacted and subsequently amended by the Legislature, providing both for the adoption and abandonment of the commission form of government by cities of the second class, is contained in Carroll, Kentucky Statutes (Edition 1922) subd. 13, §§ 3235c1 to 3235d, inclusive, from which it will be seen that both the adoption and abandonment of such form of government by the city must be effected by the same means, viz.: A submission of the question to the decision of the legal voters of the municipality as expressed by ballot at an election to be called and held in the manner prescribed by sections 3235c3 and 3235c29 of the statute, the first applying to an election respecting the adoption, and the second to an election respecting the abandonment of the commission form of government; but each containing the same provisions as to the manner of calling and holding the election.

Section 3235c29, supra, entitled: "Termination of government," etc., after providing that whenever the citizens of a city, which has been organized and conducted not less than four years under the commission form of government, shall desire to terminate such government, and shall have filed with the county judge written petitions signed by such number of legal voters of the city as will equal 33 1/3 per cent. of the votes cast in the city at the last preceding general election, further provides that the judge of the county court, at the next regular term of his court, after receiving the petitions, shall enter--

"an order on his order book, directing an election to be held in said city at the next regular election and not earlier than sixty days after said application is lodged with said judge, which order shall direct the sheriff or other officers of said county who may be appointed to hold said election, to open the polls at each and all the voting places in said city for the purposes of taking the sense of the qualified voters of said city upon the question as to whether or not the citizens of said city are in favor of the abandonment of the organization and government of said city under the provisions of this act. * * *"

Following the foregoing provisions of the section are others prescribing the form of the question to be voted on, making it the duty of the county clerk to deliver to the sheriff, within five days after it is made, a certified copy of the order of the county court calling the election, and imposing upon the sheriff certain duties to be performed after receiving of the clerk the order; which duties are defined as follows:

"And it shall be the duty of said sheriff or other such officer, to have such order published in some weekly or daily newspaper, published or circulated in said county, for at least two weeks before the election, and also to advertise the same by printed or written handbills posted in conspicuous places in said city, for the same length of time. If there is no weekly or daily newspaper published in said city, or the proprietor of such paper refuses to publish said notice, the printed or written handbills provided for shall be sufficient notice. The sheriff or other such officer shall have the advertisements and notices herein provided for, posted as herein required, within seven days after he receives the orders of the county court. * * *"

It is not alleged in the petition that the county judge of McCracken county acted without authority in the matter of ordering the election in question; that the order therefor did not submit in proper form to the voters the proposition to be determined by their votes, or that, in form or substance, it failed, in any particular, to comply with the requirements of the statute, supra. Nor is it alleged...