Fowler v. City of Oakdale

• Decision Date: 29 April 1914
• Citation: 158 Ky. 603
• Parties: Fowler v. City of Oakdale.
• Court: Kentucky Court of Appeals

158 Ky. 603

Fowler v. City of Oakdale.

Court of Appeals of Kentucky.

Decided April 29, 1914.

Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).

W. S. SANFORD for appellant.

CHAPEZE & CRAWFORD for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

The appellant, J. W. Fowler, a resident, citizen and tax payer of the city of Oakdale, Jefferson County, by this action sought to enjoin the issuance and sale, by its mayor and Board of Councilmen, of $25,000.00 of bonds, the proceeds of which are to be used in constructing sewers in that city. Oakdale is an incorporated city of the fifth class. The bonds are fifty in number, for the principal sum of $500.00 each, bearing five per cent interest from March 1, 1914, until paid, and payable semi-annually, according to the terms of the coupons attached to each bond. All the bonds mature twenty years from March 1, 1914.

The question whether the indebtedness evidenced by these bonds should be incurred and bonds issued by the city of Oakdale was, by proper ordinance, duly passed by its Board of Councilmen, submitted to an election by the qualified voters thereof, held November 4, 1913, at which election 196 votes were cast in favor of incurring such indebtedness and 32 cast against it. The grounds alleged in the petition against the right of the city of Oakdale to issue or sell the bonds in question were as follows: 1. That the publication of the ordinance submitting the question of incurring the indebtedness and issuing the bonds to the voters of Oakdale for their approval or rejection was improperly made; such publication and the calling of the election having been by typewritten notices posted in three or more public places in the city instead of in a newspaper published or of general circulation therein; 2. That the persons voting at the election in favor of incurring the indebtedness and issuing the bonds were less than two-thirds of all the qualified voters in the city; 3. That the levy of the tax to provide for the payment of interest on the bonds and a sinking fund for the redemption of the bonds, was not made at the time or in the manner required by law; 4. That the ordinances calling the election, making the tax levy and directing the issuance of the bonds, do not, as to their enacting clauses, comply with section 3638, Kentucky Statutes.

The city of Oakdale filed a demurrer to the petition, as amended, which was sustained by the circuit court, the injunction refused and the petition dismissed; and from the judgment manifesting these rulings this appeal is prosecuted.

It is not claimed by the appellant that the ordinance requiring the holding of the election fails to specify the amount of the indebtedness proposed to be incurred, the purpose of the same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund. On the contrary, it is admitted that in these particulars the ordinance conforms to section 3637, sub-section 3, Kentucky Statutes, which provides for the holding of such an election and the manner of conducting same. The complaint is that notice of the ordinance and election to be held thereunder was not published for at least two weeks in some newspaper published, or of general circulation, in the city, but admitted that such publication was made by three typewritten notices posted at public places within the corporate limits of the city of Oakdale for more than two weeks before the election. The statute, section 3637, sub-section 3, provides:

"Such notice shall be published for at least two weeks in some newspaper published in or of general circulation in such town, or by posting written or printed notices at three or more public places in such town."

The publication admittedly made by posting type-written notices at three or more public places in the city, was sufficient. As the statute delegates to the discretion of the Board of Councilmen of cities of the fifth class authority to publish such a notice either in some newspaper published in or of general circulation in the town, or by posting written or printed notices at three or more places in such town, in the exercise of the discretion thus conferred the council had the right to make the publication in either manner allowed; consequently it acted according to law and no one has the legal right to complain. It is also admitted that there was no newspaper published in the city of Oakdale, although newspapers of the adjacent city of Louisville have a general circulation therein. This admission, however, is not material, for the council, even if there had been a newspaper published in the city of Oakdale, had the right to make the publication as was done.

The second contention has been too frequently overruled by us to require an extended discussion of it here. In brief, it is the meaning of section 157 of the Constitution, as well as of section 3637, sub-section 3, Ky. Stats., that the assent of two-thirds of the electors whose votes are cast on the question of incurring the indebtedness, is all that is necessary. As said in Board of Education of Winchester v. City of Winchester, 120 Ky. 594:

"Every provision of the Constitution is mandatory. When it is provided that an indebtedness to a certain amount shall not be incurred without the assent of two-thirds of the electors voting at an election to be held for that purpose, it necessarily follows from the Constitutional provision that such an indebtedness may be incurred with the assent of two-thirds of the voters. The legislature can neither subtract from nor add to the Constitutional requirement. The constitutional provision regulates the subject and removes it from legislative control." Cooley, Constitutional Limitations, page 64.

In Render v. City of Louisville, 142 Ky. 409, we said, in commenting upon the provisions of the Constitution in question, and the discussion of it in the opinion of the case, supra:

"It is proper to add in this connection that we also held in the case, supra, that the meaning of section 157 of the Constitution is, that the assent of two-thirds of the electors whose votes are cast on the question of incurring the indebtedness, is all that is necessary; otherwise the section of the Constitution, supra, would have required the legislature to indicate by statutory enactment some means of ascertaining the entire number of legal voters in the municipality. (Montgomery County Court v. Trimble, 104 Ky., 629; Tipton, etc., v. City of Shelbyville, etc., 32 R. 1123)."

It appears from the petition that there were 228 votes cast on the question whether the indebtedness of $25,000.00 should be incurred for the construction of sewers in the city of Oakdale and an issue of bonds made therefor. Of these, 196 votes were cast for the proposition and 32 against it. Thus it will be seen that not only two-thirds, but about eighty-five per cent of the voters, voting upon the question, gave their assent to the proposition, which met the requirements of the Constitution and the statute. It is claimed, however, that as at the time this election was held there was also held an election for mayor and members of the council of the city of Oakdale, in which election 438 votes were cast, this fact makes it apparent that but little more than half of the...