Kimbley v. City of Owensboro

• Decision Date: 22 June 1917
• Citation: 176 Ky. 532,195 S.W. 1087
• Parties: KIMBLEY v. CITY OF OWENSBORO ET AL.
• Court: Kentucky Court of Appeals

195 S.W. 1087

176 Ky. 532

KIMBLEY v. CITY OF OWENSBORO ET AL.

Court of Appeals of Kentucky.

June 22, 1917

Appeal from Circuit Court, Daviess County.

Suit by Hugh Kimbley against the City of Owensboro and others. From judgment dismissing the petition, plaintiff appeals. Affirmed.

Ben D Ringo and La Vega Clements, both of Owensboro, for appellant.

W. P Sandidge and John A. Dean, Jr., both of Owensboro, for appellees.

CLAY C.

Hugh Kimbley, a citizen and taxpayer of the city of Owensboro brought this suit against the city, and the mayor and members of the common council of the city, to enjoin a sewage bond issue of $225,000. Plaintiff's demurrer to the answer was overruled, and, plaintiff having declined to plead further, his petition was dismissed. Plaintiff appeals.

The answer discloses the following facts: Owensboro is a city of the third class. On October 7, 1915, the common council passed "An ordinance providing for obtaining the assent of the voters of the city of Owensboro to authorize the common council thereof to borrow money, by issuing bonds of said city, to be used in repairing and reconstructing the present sewage system in said city, and for the purpose of constructing and installing additional sewers to its present sewage disposal system, and providing for the amount of money necessary to be raised annually by taxation for an interest and sinking fund for the purpose of paying the semi-annual interest on and liquidating said bonds at their maturity." Said ordinance was twice publicly read and passed by the common council at two sessions held on different days, and on each passage received the votes of more than two-thirds of all the councilmen then elected, and the yeas and nays were duly called on each passage and entered on the journal. This ordinance was duly signed and approved by the mayor on October 8, 1915. By this ordinance an election was ordered to be held on the first Tuesday after the first Monday in November, 1915, for the purpose of submitting to the qualified voters of the city the question whether they would assent to the issue of sewage bonds to the extent of $225,000, and the imposition of an annual tax of $18,750 to raise a sinking fund to pay the interest on said bonds and liquidate the principal thereof at maturity. The ordinance further provided that the mayor should cause notice of said election to be published in some daily newspaper published in the city of Owensboro for not less than 15 days prior to the date of said election. At that time the Owensboro Daily Messenger and the Owensboro Inquirer were both daily newspapers published in the city of Owensboro, and the former was published on every day except Monday, and the latter on every day except Saturday. The notice of the election was published in the Owensboro Daily Messenger for 17 consecutive days, Mondays excepted, next preceding the election. Notice was also published in the Owensboro Inquirer for 17 consecutive days, Saturdays excepted, next preceding the election. The election was regularly held on the first Tuesday after the first Monday in November, 1915, and 1,373 votes were cast in favor of the bond issue and 310 votes against it, and the result properly certified.

On February 21, 1916, an ordinance authorizing and directing the issue and sale of the bonds of the city of Owensboro to the amount of $225,000, and appropriating $18,750 annually of the revenue and public moneys of the city for the payment of the semiannual interest thereon, and creating a sinking fund for the ultimate payment of the principal thereof, was passed by the common council. This ordinance was also twice publicly read and passed by the common council at two...