Frost v. Central City

• Decision Date: 18 June 1909
• Citation: 134 Ky. 434,120 S.W. 367
• Parties: FROST et al. v. CENTRAL CITY et al.
• Court: Kentucky Court of Appeals

120 S.W. 367

134 Ky. 434

FROST et al. v. CENTRAL CITY et al.

Court of Appeals of Kentucky.

June 18, 1909

Appeal from Circuit Court, Muhlenberg County.

"To be officially reported."

Action by Ed Frost and others against the City of Central City and others to enjoin the issuance of school bonds. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

J. K Freeman, Jr., for appellants.

Walker Wilkins and Tom B. McGregor, Asst. Atty. Gen., for appellees.

BARKER J.

Central City belongs to the fourth class of municipalities of this commonwealth. Its general council, desiring to aid the common schools of the city by erecting two new school buildings duly and legally passed an ordinance submitting the question to the qualified voters as to whether or not the city authorities should be empowered to issue $24,000 of bonds for the purpose of raising sufficient money to erect the buildings in question. The question of the issuance of the bonds was submitted to the voters of the city at the regular election in November, 1908 and of the votes cast upon the question 310 were in favor of the issuance of the bonds and 37 against the proposition. Thereupon the city officials were proceeding to issue and sell the bonds thus authorized, when the appellants, who are citizens and taxpayers of Central City, instituted this action to enjoin this being done. The petition is carefully and skillfully drawn, and sets forth all of the facts concerning the election and the power of the city to issue the bonds in such manner as that a general demurrer raises all the legal questions to be adjudicated in order to determine whether or not the bonds so issued would be valid and legal. A general demurrer was interposed to the petition and sustained by the circuit court. The plaintiffs (appellants) declining to amend further, their petition was dismissed, and of this judgment they are now complaining. In discussing the questions necessary to be adjudicated, we find it convenient to assume in the argument that all the procedure leading up to the issuance of the bonds was regular and valid except when the contrary is stated.

The first question raised by the demurrer is whether or not the election was invalid because the vote was taken by secret ballot instead of viva voce. The appellants insist that inasmuch as this was an election concerning common school matters, the vote should have been taken viva voce instead of by secret ballot, as was done. In disposing of this question we shall assume (although we do not so decide) that under the statutes regulating the matter all elections concerning public schools, whether for trustees or for the imposition of taxes, must be by viva voce vote. The election which was held in this case was not held under the statute regulating common school elections, although the common schools of the city are to be the beneficiaries of the proceeds of the bonds when sold. Cities of the fourth class have a complete system of common schools established by sections 3588-3606, Ky. St. (Russell's St. §§ 1561-1579), inclusive, and these schools are under the dominion and supervision of the board of education consisting of two trustees from each ward of the city; and for the support of these schools the city is authorized by subsection 2 of section 3490 (Russell's St. § 1511, subsec. 2) to collect certain taxes, but it is manifest that the taxes so authorized are only for the purpose of maintaining schools, and not to meet the extraordinary expense of erecting new buildings. By subsection 34 of section 3490 (Russell's St. § 1511, subsec. 34) the city has general power, when authorized in the manner therein pointed out, to issue municipal bonds for the purpose of meeting municipal needs and liabilities. This subsection is as follows: "If at any time the board of council shall deem it necessary to incur any indebtedness, the payment of which cannot be met without exceeding the income and revenue provided for the city for that particular year, they shall give notice of an election by the qualified voters of the town to be held, to determine whether such indebtedness shall be incurred. Such notice shall specify the amount of the indebtedness proposed to be incurred, the purpose or purposes of the same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund, as herein provided. 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. If, upon a canvass of the votes cast at such election, it appears that two-thirds of all the qualified electors in such town shall have voted in favor of incurring such indebtedness, it shall be the duty of the board of council to pass an ordinance providing for the mode of creating such indebtedness, and of paying the same. But such indebtedness shall not in any event exceed the limit provided in the Constitution for cities of the fourth class. And in such ordinances provision shall be made for the levy and collection of an annual tax upon all real and personal property subject to taxation within such town, sufficient to pay the interest on such indebtedness as it falls due; and also to constitute a sinking fund for the payment of the principal thereof, within a period of not more than twenty years from the time of contracting the same. It shall be the duty of the board of council in each year thereafter, at the time at which...