Denton v. Pulaski County

• Decision Date: 05 May 1916
• Citation: 185 S.W. 481,170 Ky. 33
• Parties: DENTON ET AL. v. PULASKI COUNTY ET AL.
• Court: Kentucky Court of Appeals

185 S.W. 481

170 Ky. 33

DENTON ET AL. v. PULASKI COUNTY ET AL.

Court of Appeals of Kentucky.

May 5, 1916

Appeal from Circuit Court, Pulaski County.

Injunction by Lincoln Denton against Pulaski County and another, in which W. T. Trimble intervened. From a judgment for defendants, plaintiff and intervener appeal. Affirmed.

J. P Hobson & Son, of Frankfort, and Denton, Kennedy & Hays, B. V Smith & Son, and Wm. M. Catron, all of Somerset, for appellants.

O. H Waddle & Sons, of Somerset, for appellees.

CLAY C.

This is a suit to enjoin the county of Pulaski and its fiscal court from issuing $300,000 worth of bonds for road purposes. The suit was originally brought by Lincoln Denton. During the course of the proceedings W. T. Trimble was permitted to intervene. The injunction being refused, plaintiff and the intervening petitioner appeal.

The election took place on December 18, 1915, pursuant to an order of the county court made at its regular October term and based on a petition signed by the requisite number of legal voters and freeholders, and theretofore filed in that court at its regular September term, 1915. On December 22, 1915, the election returns were duly made to the county election commissioners, who, after canvassing the same, certified that there were 2,095 votes in favor of the bond issue and 1,959 votes against it. They further certified:

"That under the law in this and the Constitution of this state the said proposition failed to carry."

Thereafter the county court entered an order reciting the fact that it appeared from the certificate of the election commissioners that there were 2,095 votes for the bond issue and 1,959 votes against the issue, and containing the following:

"* * * And, there not being a two-thirds majority in favor of the same, it appears that the proposition was lost. Case dismissed."

The validity of the election is attacked on numerous grounds, which we shall consider in the following order: 1. Section 4307 of the Kentucky Statutes provides:

"Before the bonds authorized under this act shall be issued, the county court of the county, upon the petition of one hundred and fifty legal voters who are freeholders of the county, shall at the regular term thereof, after receiving said petition, make an order on his order book directing an election to be held in said county on some day named in said petition not earlier than sixty days after said application is lodged with the judge of said court."

In this case the petition did not specify the day, but asked for the calling of an election on the ______ day of ______, 1915. It is argued that the county court has no jurisdiction to call an election except on the day named in the petition, and, no day having been named, the order by which the county court fixed the day was invalid and did not authorize the holding of a legal election on that day. It will be observed that the statute does not declare in express terms that the petition shall fix the day of the election, but merely provides that the county court shall make an order directing the election to be held on some day named in the petition. We therefore conclude that the purpose of the statute was to confer upon the petitioners the right to name the day within the limits fixed by the statute, but, if they fail to avail themselves of this right and leave the day blank, as was done in this case, such failure does not deprive the county court of the power to fix the day. Hence, if he names a day for the election not later than 60 days after the application is lodged, and the election is properly had and regularly held, the mere fact that no day was named in the petition will not render such an election invalid.

2. The statute provides for the submission of the question of issuing bonds in the following form:

"Are you in favor of issuing ...... in bonds for the purpose of building roads and bridges?" Section 4307 of the Kentucky Statutes.

On the ballots issued in the election in contest the question appeared in the following form:

"Are you in favor of issuing $300,000.00 in bonds for the purpose of building roads?"

It is therefore insisted that, as the ballots did not conform to the statute, the question was not submitted in proper form, and that for that reason the election is invalid. Section 157a of the Constitution authorizes the pledging of the credit of the commonwealth to any county "for public road purposes," and further provides that any county may be permitted to incur an indebtedness not in excess of 5 per cent. of the value of the taxable property therein "for public road purposes in said county." A bridge is nothing more than that part of a road which crosses a stream, and the power to issue bonds for public road purposes necessarily carries with it the power to build bridges, which are a part of the road. Hence the statute is a correct legislative interpretation of the power conferred by the Constitution, and its only effect is to make that power more specific. Since a vote for bonds for building roads is, in effect, a vote for bonds for building bridges, it is clear, we think, that the form in which the question was printed was not misleading, and affords no reasonable ground for holding the election invalid.

3. It is next insisted that, as the election commissioners certified that the proposition failed to carry, their certificate cannot be collaterally attacked, and therefore precludes the fiscal court from issuing the bonds. In the very nature of things there is no such person as a successful candidate in an election on a public question, and therefore no one to whom a certificate of election may be awarded. We therefore conclude that the election commissioners have no power to pass on questions of law and declare whether or not a public question has been carried. Their power is confined to the certification of the result, and by the result we mean the number of votes cast for and against the proposition. When the result as thus certified shows that the proposition has carried, the election commissioners are without authority to change the legal effect of this result by a certificate to the contrary.

4. Another contention is that the order of the county court declaring that the proposition had been lost and dismissing the case put an end to the proceedings and deprived the fiscal court of the power to issue the bonds. While the statute authorizes the county court to order an election when a proper petition therefor has been filed, it contains no provision conferring authority on that court to pass on the validity of an election or to dismiss the proceedings. After an election has been regularly held, the result properly certified, and the proposition has carried, the fiscal court alone has the power and authority, within the constitutional and statutory limitations, to issue the bonds authorized by the election, and its right to proceed further and issue the bonds cannot be interfered with by the county court, but only by a...