Kelly v. Jackson

• Decision Date: 23 January 1925
• Citation: 206 Ky. 815
• Parties: Kelly, et al. v. Jackson, et al.
• Court: Kentucky Court of Appeals

206 Ky. 815

Kelly, et al. v. Jackson, et al.

Court of Appeals of Kentucky.

Decided January 23, 1925.

Appeal from Fulton Circuit Court.

BEN T. DAVIS for appellants.

HOLIFIELD, GARDNER & McDONALD and McMURRAY & McNEILL for appellees.

OPINION OF THE COURT BY DRURY, COMMISSIONER — Affirming in part and reversing in part.

In a proceeding begun by appellants, under the declaratory judgment act, it was adjudged in the court below that it was not unlawful for cattle or any species thereof, to run at large in Walnut Grove voting precinct No. 19, in Fulton county, Kentucky.

On August 31, 1917, a petition for a stock law election being then pending in the Fulton county court, the fiscal court of that county made an order in which it directed that the election should apply to the county as a whole, and at an election held on November 6, 1917, the majority of the voters of Fulton county voted against cattle or any species thereof being allowed to run at large in Fulton county. On August 27, 1921, a petition was filed by more than twenty voters of Walnut Grove voting precinct No. 19, by which petition the Fulton county court was asked to make an order submitting to the voters of Walnut Grove voting precinct No. 19, at the following November election, the question whether or not cattle or any species thereof shall be permitted to run at large upon the unenclosed land and public highways of that voting precinct, and at the election held November 8, 1921, a majority of the voters of that precinct voted in favor of permitting cattle to run at large.

Notwithstanding this election, the appellants contest the right of cattle to run at large in said voting precinct, and this suit was begun to test that question. They contend that as a result of this election, the will of the voters of magisterial district No. 3, of which voting precinct No. 19 is a part, as well as the will of the voters of Fulton county as a whole, is set at naught. As more than four years had elapsed since the fiscal court made Fulton county the unit on August 31, 1917, it had on September 6, 1921, the right to make voting precinct No. 19 the unit for the election to be had that year. See section 4646, Kentucky Statutes.

The election in the county as a whole was had on November 6, 1917, and the election for Walnut Grove precinct No. 19 was held on November 8, 1921. As more than four years had elapsed between the two elections, the voters had a right to vote upon this question in this precinct. Section 4651, Kentucky Statutes.

At that time the fiscal court had the right to order an election in a voting precinct, and that right is not affected by the subsequent amendment of section 4646, which was passed in 1922. See chapter 124, Acts of 1922.

Appellants contend that the fiscal court, on September 6, 1921, did not, by a majority of the members composing same, decide that the election should be confined to the voting precinct; but in the order of the fiscal court, an official copy of which is in the record, the following appears:

"The court being advised from the petition, statements and law in the premises, decided by a vote of a majority of its...