Davidson v. Board of Education of City of Pikeville

• Decision Date: 19 June 1928
• Citation: 7 S.W.2d 1056,225 Ky. 165
• Parties: DAVIDSON v. BOARD OF EDUCATION OF CITY OF PIKEVILLE et al.
• Court: Kentucky Court of Appeals

7 S.W.2d 1056

225 Ky. 165

DAVIDSON v. BOARD OF EDUCATION OF CITY OF PIKEVILLE et al.

Court of Appeals of Kentucky

June 19, 1928

Appeal from Circuit Court, Pike County.

Suit by Will Davidson against the Board of Education of the City of Pikeville and others. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Moore &amp Childers, of Pikeville, for appellant.

Stratton & Stephenson, of Pikeville, for appellees.

HOBSON C.

The board of education of Pikeville adopted a resolution under section 3587a20, Kentucky Statutes, showing that it was necessary for the proper accommodation of the school children to acquire more land and erect and improve school buildings and that for this purpose a bond issue of $65,000 was necessary. The resolution was certified to the council on February 19, 1928. The council on that day passed an ordinance calling an election to be held on March 24, to take the sense of the people on the bond issue. The election was held. More than two-thirds voted for the bond issue and thereupon an ordinance was passed directing the issue and sale of the bonds. Appellant Davidson then filed this suit attacking the validity of the proceeding and praying that the city authorities be enjoined from issuing the bonds. The circuit court dismissed the petition, and he appeals.

The only ground relied on for the reversal of the judgment is that the election was not properly called. The statute provides:

"It shall, thereupon, be the duty of the general council * * * to adopt an ordinance submitting to the qualified voters of the city, at a time to be fixed in said ordinance, not less than fifteen nor more than thirty days from the time such certificate is filed with it, the question whether bonds shall so issue for the purpose or purposes aforesaid."

It is insisted that as the resolution of the board of education was certified to the general council on February 19, and the election was ordered held on March 24, which was more than 30 days from February 19, the election was void.

The fact is that March 24 was Saturday, and, although this was the thirty-third day after the resolution was certified to the council, the election was fixed for Saturday, no doubt on the idea that in this way a larger vote would be secured and the real sense of the people would be better taken, as many persons are not so busy on Saturday as on other days of the week.

The rules as to when a statute is mandatory and must be literally followed, or when it is directory and may be substantially followed, are these:DP"Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the Legislature, to be ascertained from a consideratin of the entire act, its nature, its object, and the consequencs that would result from construing it one way or the other." 36 Cyc. 1157.

"When a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than...