Horning v. Fiscal Court of Caldwell County

• Decision Date: 17 February 1920
• Citation: 187 Ky. 87,218 S.W. 989
• Parties: HORNING ET AL. v. FISCAL COURT OF CALDWELL COUNTY ET AL.
• Court: Kentucky Court of Appeals

218 S.W. 989

187 Ky. 87

HORNING ET AL. v. FISCAL COURT OF CALDWELL COUNTY ET AL.

Court of Appeals of Kentucky.

February 17, 1920

Appeal from Circuit Court, Caldwell County.

Suit by Joe Horning and others against the Fiscal Court of Caldwell County and others to enjoin the issue or sale of county bonds, wherein M. R. Kevil intervened. From a decree dismissing the petition of plaintiffs, and also that of intervener, they appeal. Affirmed.

R. W Lisanby, of Princeton, for appellants.

J. C Gates, J. E. Baker, and Albert Morse, Co. Atty., all of Princeton, for appellees.

HURT J.

On the 27th day of September, 1919, a special election was held at the various polling places in Caldwell county for the purpose of taking the sense of the legal voters of the county upon the question whether or not the fiscal court should have the power to issue and sell the bonds of the county to the amount of $300,000 for the purpose of building, constructing, and reconstructing public roads and bridges in the county as provided by section 4307, Ky. Stats. The election resulted in a majority of the persons who voted at the election casting their votes in favor of issuing the bonds. The appellants instituted this action to enjoin the county and the fiscal court thereof from issuing or selling the bonds. Upon a hearing the circuit court adjudged that the petition of appellants, and also the petition of M. R. Kevil, an intervening petitioner, be dismissed, and from this judgment the appellants have appealed. The grounds of reversal relied upon are that the court erred in the following particulars:

(1) In sustaining the defendants' demurrer to the second paragraph of the petition.

(2) In overruling the plaintiffs' demurrer to the second paragraph of the answer.

(3) In overruling exceptions to the deposition of the judge of the county court.

(4) In adjudging that the advertisement of the election made by the sheriff was sufficient to uphold the validity of the election.

(5) In permitting the petition of the intervening plaintiff to be filed.

(6) In overruling the plaintiffs' motion to file an amended petition.

(7) In ordering the submission of the action for trial and judgment and rendering final judgment therein before it stood for trial, in accordance with the provisions of the Civil Code.

These objections to the soundness of the judgment will be considered in their order.

(a) The second paragraph of the petition, to which the trial court sustained a general demurrer, and which the plaintiffs, who are appellants here, did not offer to amend, set forth as one of their causes of action and one of the reasons why the election was invalid that the county of Caldwell contained the city of Princeton, a city of the fourth class, wherein persons, to qualify themselves to vote, are required to register for that purpose preceding the election, and that the county judge, when the order was made for the election to be held for the purpose of authorizing the fiscal court to issue and sell the bonds of the county for road and bridge purposes, did not at the same time fix a day for the registration of persons who resided in Princeton entitled to vote thereat whose names had not been recorded on the registration books for that year, and did not publish the fact of the registration provided for as the time and place of holding the special registration was required to be published as provided by section 1495, Ky. Stats., but instead of having made the order for the registration on July 21st, the day upon which the order to hold the election was made, on the 28th day of July thereafter made an order providing for the special registration, but that the order was not entered of record nor lodged for record in the office of the clerk of the county court, nor was it delivered to the sheriff. The pleading does not advise us whether a registration was actually had or was not had, nor whether the voters who resided in the city of Princeton participated or did not participate in the election, nor whether they voted or were denied the right to vote at the election on account of the alleged irregularities of the registration, if the registration was had, or whether they were all or any of them denied the right to vote because of the fact that no opportunity was given them to register as voters. The number of persons who resided in Princeton who were qualified to vote at the election if registered is not alleged in the pleading, nor does it undertake to say how many of such persons voted at the election, if any of them voted, or, if denied the right to vote, how many of them offered to vote and were denied the privilege. Neither does the pleading show how many voters in the county cast their votes in favor of the issuing of the bonds nor the number who voted against the issuing of the bonds. Upon this subject the only information conveyed by the petition is that the majority for the issual of the bonds was 286, and the averment of the petition that a majority of the legal votes cast were cast in favor of giving the fiscal court the authority to issue and sell the bonds. There is an absence from the petition of any averment to the effect that the alleged irregularities in ordering the registration had any effect upon the result of the election in one way or the other.

The essential thing to determine concerning an election lawfully held is whether the result as certified by the election commissioners speaks the will of the electorate, and an election should always be allowed to stand if there is a fair and practical way of determining that the result of the election spoke the will of those legally participating or legally entitled and desirous of participation. One of the constitutional guaranties is that elections must be "fair and equal," which means that all persons who are entitled to participate in an election as voters shall have an equal opportunity to do so, and shall not be denied such right, but, before a court is authorized to hold an election to be void as not expressive of the will of the electorate, because legal voters have been denied the right, or because illegal voters have been permitted to vote, it must appear that such denial of legal voters to participate or the participation of the illegal voters had such an influence upon the result of the election as certified that it cannot be determined that such result was the will of such number of the legal voters as were necessary to effect such result. Hence in many cases of contested elections, where legal voters have been denied the right to vote by fraud, bribery, violence, the acts of officers, through mistake, or the faults of the law, the election will not be set aside unless it appears that the number of the legal voters who were deprived of the right to vote, when added to the votes certified for the minority, changes the result of the election, or where the number of illegal voters who were permitted to vote and for whom or for what they voted cannot be ascertained is such a number that, when subtracted from the majority, the result of the election as certified is changed. The election, under such circumstances, is held for naught, because of the impossibility of determining the will of the electorate. Banks v. Sergent, 104 Ky. 843, 48 S.W. 149, 20 Ky. Law Rep. 1024; Scholl v. Bell, 125 Ky. 778, 102 S.W. 248, 31 Ky. Law Rep. 335; Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828, 33 Ky. Law Rep. 653, 16 Ann. Cas. 1050; Ford v. Hopkins, 141 Ky. 181, 132 S.W. 542; Wallbrecht v. Ingram, 164 Ky. 476, 175 S.W. 1022; Hardy v. Russell, 181 Ky. 287, 204 S.W. 145.

The opinion in Early v. Rains, 121 Ky. 439, 89 S.W. 289, 28 Ky. Law Rep. 415, relied upon by appellants as announcing a contrary doctrine to that above stated, does in fact do so, but the conclusion in that case, as stated in Wallbrecht v. Ingram, supra, has not been followed by the numerous cases decided by the court since its rendition. The opinion in Taylor v. Betts, 141 Ky. 138, 132 S.W. 162, relied upon by appellants, does not announce a contrary principle to that herein declared, since in that case the election was declared void because two-thirds of the voters who participated were not eligible to vote, and the will of the legal voters therefore could not be ascertained. Hence it is unnecessary to decide whether the manner and time of ordering the registration was such an irregularity as to make the registration void if the registration was held, as the pleading fails to show that the result of the election would have been different if the county judge had ordered the special registration at the same time he ordered the election, or that his failure to do so in any way influenced the result, and the demurrer was properly sustained.

(b) To determine the soundness of the ruling of the court in overruling the plaintiffs' demurrer to the second paragraph of the answer, it is necessary to advert to the first paragraph of the petition, as the second paragraph of the answer was a plea in avoidance of the cause of action set out in the first paragraph of the petition. In the first paragraph of the petition the plaintiffs alleged that the election was void for the reason that the county court was without authority to order the election held on the 27th day of September as no one had signed or lodged a petition with the county judge requesting an election to be held on the 27th day of September, but the petition which was filed with the judge of the county court requested the election to be held upon the 30th day of September, and the action of the judge in ordering the election held upon the 27th of September was without authority, and did not authorize the holding of an election upon that day. The first paragraph of the answer was a...