Katterjohn v. Kelly

• Court: Kentucky Court of Appeals
• Writing for the Court: SAMPSON, J.
• Citation: Katterjohn v. Kelly, 191 Ky. 238, 230 S.W. 50 (Ky. Ct. App. 1921)
• Decision Date: 19 April 1921
• Parties: KATTERJOHN, MAYOR, ET AL. v. KELLY.

230 S.W. 50

191 Ky. 238

KATTERJOHN, MAYOR, ET AL. v. KELLY.

Court of Appeals of Kentucky.

April 19, 1921

Appeal from Circuit Court, McCracken County.

Action by George Kelly against F. W. Katterjohn, Mayor, and others. Judgment for plaintiff and defendants appeal. Reversed with directions.

Roscoe Reed, of Paducah, for appellants.

A. E Boyd, of Paducah, for appellee.

SAMPSON J.

In September, 1919, the board of commissioners of the city of Paducah passed an ordinance calling a special election for the purpose of submitting to the qualified voters of said city the question of said city issuing bonds in the amount of $250,000, the proceeds to be used in the construction of a sewer system in a designated portion of said city, and November 4, the general election day, was fixed as the day on which said special election to vote on said bond issue should be held. An election was held pursuant to said ordinance, and section 3069, Kentucky Statutes, resulting in a majority of more than two-thirds in favor of the bond issue.

At a subsequent meeting of the board of commissioners an ordinance was passed subdividing sewer district No. 3 in the city of Paducah into sections A, B, and C, and directing where and what sewers should be constructed with the money raised from said bond issue. This action was brought by appellee, Kelly as a citizen and taxpayer, against the mayor and board of commissioners of the city and the said city to enjoin them from (1) selling the bonds so voted and proposed to be issued by the city, or (2) if that could not be done then to enjoin said officials and city from expending all said money on the construction of the sewer line in subdivision A of sewer district No. 3 of said city as proposed by the ordinance; it being conceded that the said sum of $250,000 arising from a sale of bonds would be sufficient to build only a part of the main line of the proposed sewer through subdivision A of district No. 3. On final hearing the trial court entered an order, enjoining said officials and city from selling or using the proceeds derived from a sale of the $250,000 worth of bonds voted by the citizens of Paducah, except for the purpose of constructing and maintaining a main line sanitary sewer in and through subdivisions A, B, and C in sewer district No. 3, and enjoining and restraining said defendants from expending all the proceeds of the bond issue in subdivision A of said sewer district, as proposed by the ordinance.

From this judgment the city and its officials appeal to this court.

Appellee Kelly insists that the bond issue is invalid because no sufficient advertisement of the special election upon which it rests was had. A city of the second class such as Paducah can only create a bonded indebtedness such as the one under consideration by a vote of the people of such city. The statute (section 3069), which is a part of the charter of the cities of this class, provides in part:

"The general council shall not expend any money in excess of the amount annually levied, collected or appropriated for any special object: Provided, if, in any year, the general 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, it shall, by ordinance, order an election by the qualified electors of the city to be held, to determine whether such indebtedness shall be incurred. Such ordinance shall specify the amount of indebtedness

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