Hume v. Grant

• Decision Date: 24 September 1915
• Citation: 178 S.W. 1028,165 Ky. 723
• Parties: HUME, SHERIFF, v. GRANT.
• Court: Kentucky Court of Appeals

178 S.W. 1028

165 Ky. 723

HUME, SHERIFF, v. GRANT.

Court of Appeals of Kentucky.

September 24, 1915

Appeal from Circuit Court, Boone County.

Action by Earnest L. Grant against B. B. Hume, as Sheriff. From a judgment for plaintiff, defendant appeals. Reversed, with directions to dismiss.

D. E Castleman, of Erlanger, for appellant.

S. W Tolin, of Burlington, for appellee.

TURNER J.

In 1907 the Belleview Graded School District was organized in Boone county. As originally laid off, it did not embrace the property of the appellee Grant; but in March, 1908, 13 citizens, representing themselves as legal voters of certain territory adjacent to the graded school district, presented a petition to the county school superintendent, purporting to have been signed by each of them, asking that the territory described in the petition be annexed to the graded school district, as is authorized by section 4464b of the Kentucky Statutes, whereupon the board entered an order reciting that the 13 signers were a majority of the legal voters in the territory and annexing same. The territory so annexed embraced appellee's property, and this is an equitable action seeking to enjoin the collection of a tax levied upon his property by the board of trustees of the district.

The case was tried out in the lower court solely upon the issue as to whether the signers of the petition constituted a majority of the legal voters in the annexed territory, there being no question made in the pleadings as to the qualifications or residence of the 13 signers of the petition; but there was an allegation in an amendment that one of them, Sam Bills, had not signed it.

The judgment of the lower court was that, under the evidence there were 25 legal voters in the territory involved, that Sam Bills did not sign the paper presented to the county superintendent, and that Charlie Hosley, another signer thereof, ought not to be counted, because he did not at the time reside in the proposed territory to be annexed, and adjudged that a majority of the legal voters of the territory did not sign the petition, and perpetually enjoined the collection of the tax, and thereby held that the annexation had not been properly made.

There was, however, no issue made in the pleadings as to the qualifications or the place of residence of Hosley, and a fair interpretation of the pleadings is that all of the signers of the petition were residents of and legal voters in the territory proposed to be annexed; the only attack upon the paper being that Bills had not signed it.

While in the lower court the case was tried out solely on the question indicated, in this court the appellee is urging the affirmance of the judgment for two other reasons: (1) Because, as claimed, section 4464b of the Kentucky Statutes is unconstitutional; and (2) because of the provision in section 4464 requiring that two years shall intervene after a graded school district is established before additional territory may be annexed thereto in the manner prescribed by that section, the argument being that that part of section 4464 was not repealed by section 4464b.

It is unnecessary to consider the first question made, as this court has recently passed upon the constitutionality of section 4464b, and is not now inclined to recede from its opinion. Slaughterville Graded School District v Brooks, 163 Ky. 200, 173 S.W. 305.

Likewise the second question made has at least indirectly been passed upon by this court in the last case cited, and in the case of Hopkins County v. Givens, 147 Ky. 837, 146 S.W. 16. In each of those cases it was held that the Legislature had by the enactment of section 4464b provided an entirely new method for the extension of boundaries of graded school districts, and had therefore repealed the provisions of sections 4464 and 4464a in so far as they were inconsistent with the new method adopted by section 4464b. It is apparent that the Legislature, in adopting section 4464b, and completely changing and revolutionizing the method of extending the limits of graded school districts, intended to eliminate the two-year period provided for in section 4464, as neither that nor any other period of limitation was provided for in the last-named statute.

The appellee's petition does not charge that any one of the 13 signers of the petition...