City of Louisville v. Board of Park Com'rs

• Decision Date: 20 December 1901
• Citation: 112 Ky. 409,65 S.W. 860
• Parties: CITY OF LOUISVILLE v. BOARD OF PARK COM'RS. [1]
• Court: Kentucky Court of Appeals

65 S.W. 860

112 Ky. 409

CITY OF LOUISVILLE v. BOARD OF PARK COM'RS. ^[1]

Court of Appeals of Kentucky.

December 20, 1901

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Action by city of Louisville against the board of park commissioners for an injunction. Judgment for defendant, and plaintiff appeals. Reversed.

H. L Stone, for appellant.

Bennett H. Young, H. H. Herr, Pirtle & Trabue, and Chas. A. Wilson for appellee.

DU RELLE, J.

By demurrer to the petition the following facts are admitted to be true: The city of Louisville is a city of the first class with authority to govern itself by ordinances and resolutions for municipal purposes not in conflict with the constitution or laws of this state or of the United States. The board of park commissioners has, by law, the care, management, and custody of all parks and grounds used for park purposes, and has power, whenever in its opinion property shall be needed for park purposes by resolution reciting such need, to order a condemnation of such property. For the purpose of raising money for the purchase or improvement of lands for park purposes, the general council of the city is authorized by ordinance to submit to the qualified voters the question whether bonds shall be issued, and if two-thirds of those voting assent the bonds are required to be delivered to the board of park commissioners. An ordinance was passed by the general council providing for the submission to a vote of the people at the November election, 1900, of the question whether $500,000 of 3 per cent. 40-year bonds of the city of Louisville should be issued, $250,000 of the proceeds thereof to be used by the board of park commissioners in acquiring the title by purchase or condemnation for park purposes of Central Park or Du Pont Square, and the other $250,000 of the proceeds thereof to be expended under the supervision of the board of public works in the construction of such sewers in the city of Louisville as should be provided for by ordinance. The question was submitted to the voters of the city upon the official ballots in this form: "Are you in favor of the issuance of $500,000 of bonds by the city of Louisville for the construction of sewers and for the acquisition of tracts of land for park property in the city of Louisville as provided in the ordinance approved October 17, 1900?" The county board of election commissioners of Jefferson county canvassed the returns, and certified that 10,252 votes were cast in favor of the issuance of the bonds, and 4,951 votes against their issuance; thus showing a majority of more than two-thirds of the votes cast on that question in favor of the bond issue. But the board of election commissioners in the canvass of the vote on question of issuing bonds failed and refused to count the vote in 18 precincts of the city of Louisville in which votes were cast for and against the bond issue, and did not canvass or count the votes for and against that proposition, although returns were made to the clerk of the Jefferson county court by the precinct election officers from each of these precincts of the vote cast for and against the issuance of bonds, which returns, if they had been canvassed by the county board of election commissioners might have changed the result of the vote on that proposition. The bonds were prepared, executed, and delivered, one-half to the board of park commissioners, and one-half to the city treasurer, and none of them was sold or delivered to any purchaser. There being doubt as to the legality of the canvass of the votes for and against the proposition to issue bonds, and as to whether that proposition was carried as required by law, and further doubt as to whether the double proposition was lawfully submitted in one question upon the ballots, the general council passed a resolution directing the city attorney to institute proceedings to have the question of the validity of the bonds tested and determined by the courts. This suit was thereupon brought in equity, setting forth the facts recited above, with others unnecessary to be here mentioned, and praying--First, that the board of park commissioners, the board of public works, and the city treasurer be enjoined from selling or disposing of the bonds; and, second, that the county board of election commissioners be required to reconvene and recanvass the vote cast for and against the proposition to issue bonds, to include in such recanvass the return from the 18 precincts, and to certify the result of such recanvass, including the 18 precincts referred to, and that the county court clerk be required to furnish the board of election commissioners the returns from such 18 precincts. A general demurrer by all the defendants and a special demurrer to the jurisdiction by the board of election commissioners were sustained to the petition, and, the city of Louisville standing by its pleading, the action was dismissed.

The question of statutory authority to submit the question of incurring indebtedness or issuing bonds for sewer purposes to the voters is not raised by the pleadings nor argued by counsel, and is not decided.

The first objection argued we do not think can be sustained. The subject of the ordinance was single. It was the issuance of city bonds to the amount of $500,000. The mere statement of the purposes for which the proceeds of the bonds were to be expended does not vitiate the submission of the...