Field v. Stroube

• Decision Date: 02 February 1898
• Citation: 103 Ky. 114,44 S.W. 363
• Parties: FIELD et al. v. STROUBE et al.
• Court: Kentucky Court of Appeals

44 S.W. 363

103 Ky. 114

FIELD et al. v. STROUBE et al.

Court of Appeals of Kentucky.

February 2, 1898

Appeal from circuit court, Bracken county.

"To be officially reported."

Action by J. O. Stroube and others against W. W. Field and others. Judgment for plaintiffs, and defendants appeal. Reversed.

J. B Clark and O'Hara & Rouse, for appellants.

A. M J. Cochran and George Doniphan, for appellees.

HAZELRIGG J.

At various times prior to the year 1895 the county or fiscal court of Bracken county had made certain tax levies for various county purposes, which had not been entirely consumed in the fulfillment of the objects for which the levies had been made; so that in the year named the court found in the hands of the sheriff and treasurer the sum of about $11,000. For the purpose of building a much-needed court house, the fiscal court, in April, 1895, appropriated the sum of $25,000, or enough thereof to effect such purpose, and made a levy of 25 cents on each $100 of the taxable property of the county. It is shown that this levy, together with the sum on hand, and the value of the old material, will construct the court house in accordance with approved plans and specifications. At the instance of certain taxpayers, the court and commissioners appointed to carry out the purpose of constructing the work have been perpetually enjoined from proceeding further with the work. This has been done upon the theory that the expenditure involved the creation of an indebtedness of $25,000, an amount exceeding, in the year 1895, the income and revenue provided for that year, and was thus violative of certain provisions of section 157 of the constitution, in that the assent of two-thirds of the voters of the county voting at an election held for that purpose had not been obtained. In our opinion, no such question is involved. To the extent that there was money on hand or assets available for the purpose in view, to that extent there was no creation of any debt, but only an appropriation of cash or assets on hand. The indebtedness in fact created was the sum represented by the difference between the available assets on hand and the contract price of the work and this amount was provided for by a levy for the current year sufficient to meet the requirements of the proposed contract. It is urged that by reason of section 180 of the constitution, the surplus taxes levied and collected for the years prior to 1895...