Montgomery County Fiscal Court v. Trimble

• Decision Date: 02 November 1898
• Citation: 104 Ky. 629
• Parties: Montgomery County Fiscal Court v. Trimble.
• Court: Kentucky Court of Appeals

Page 629

104 Ky. 629

Montgomery County Fiscal Court v. Trimble.

Court of Appeals of Kentucky.

November 2, 1898.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

C. C. TURNER AND A. A. HAZELRIGG FOR APPELLANT.

KENNEDY & WILLIAMSON, ALSO FOR APPELLANT.

G. E. COONS FOR APPELLEE.

JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.

Under "An act to provide free turnpike and gravel roads," approved March 17, 1896, there was submitted, at the November election, 1897, to the voters of Montgomery county, the proposition as to whether or not they were in favor of issuing bonds for the purchase and maintenance of the turnpike roads of the county, free of toll to the traveling public. There were 1,920 votes cast for this proposition, and 185 against it. At that election for county and State officers there were cast, in the aggregate, 3,060 votes. This action involves the construction of section 157 of the Constitution, which reads as follows: ". . . No county shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose. . . ."

There are two opposing views presented for our consideration. One is that it required two-thirds of all the votes cast at that election to give the fiscal court the right to issue bonds to purchase and maintain turnpike roads in the county, free of toll to the traveling public. The other is that when two-thirds of the voters voting on the proposition to issue bonds, etc., voted for it, the assent which the Constitution required had been obtained.

Section 157 of the Constitution does not make any reference to a general election. It limits the power of a city, town, county, and taxing district in the amount of taxes which shall be levied and collected, and prohibits them from becoming indebted in any year to an amount exceeding the income and revenue for such year, without the assent of two-thirds of the voters of such city, town, county, or taxing district, voting at an election to be held for that purpose. Previous to the present constitution, when a question was submitted to the voters as to whether a tax should be imposed or an indebtedness incurred, a majority of those voting on the question determined whether or not the tax should be levied or an indebtedness incurred. Indeed, the court can not recall an instance in which the assent of a greater number than a majority of those voting was required to be obtained to impose a tax or authorize an indebtedness to be contracted; neither can it recall an instance in which the General Assembly required a majority of the electors of a city, town, or county to give their assent to a proposition before taxes could be levied or an indebtedness incurred. It is a fundamental principle in our system of government that its affairs are controlled by the consent of the governed; and, to that end, it is regarded as just and wise that a majority of those who are interested sufficiently to assemble at places provided by law for the purpose shall, by the expression of their opinion, direct the manner in which its affairs shall be conducted. When majorities are spoken of, it is meant a majority of those who feel an interest in the government, and who have opinions and wishes as to how it shall be conducted, and have the courage to express them. It has not been the policy of our government, in order to ascertain the wishes of the people, to count those who do not take sufficient interest in its affairs to vote upon questions submitted to them. It is a majority of those who are alive and active, and express their opinion, who direct the affairs of the government; not those who are silent, and express no opinion, in the manner provided by law, if they have any. Before reaching a conclusion that those who framed our fundamental law intended to change a well-settled policy by allowing the voter who is silent and expresses no opinion on a public question to be counted the same as the one who takes an interest in and votes upon it, we should be satisfied that the language used clearly indicates such a purpose.

The constitutional convention thought it wise to require that the assent of two-thirds of those who voted upon the question of a municipality or a county incurring an indebtedness beyond its yearly income and revenue should be obtained. Partly for the purpose of taking from the general assembly the power to authorize a majority to control in such matters, section 157 was incorporated in the constitution. It is nowhere said in this section that the assent of two-thirds of the electors of the county, or two-thirds of those who may vote for candidates to fill offices, must be obtained before the indebtedness can be incurred. The language used does not even suggest the idea that the assent of two-thirds of the electors must be obtained. Besides, we cannot believe that the constitutional convention intended that some tribunal should be established to ascertain the number of electors in a county, and then require the assent of two-thirds of them to a proposition for the county to incur an indebtedness. That would introduce a new rule in this state, — one which would require accurate information, which is almost impossible to obtain. If it had been intended that two-thirds of those who might vote for candidates to fill offices and on other questions should be obtained, some language would have been employed to have clearly expressed that idea. If it had said the county could not incur an indebtedness "without the assent of two-thirds of the electors thereof," we would understand that an elector's failure to vote was equivalent to voting against the proposition. If it had said "without the assent of two-thirds of the voters thereof," voting at an election, we would be of the opinion that, when the word "election" was used, it referred to the proposition upon which the vote was to be taken. To avoid the necessity of the court determining the meaning of the word "election," as used, the constitutional convention added, immediately after the word "election," words as follows: "To be held for that purpose." So the language used in the constitution is as follows, to-wit: "That the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose."

The consensus of judicial opinion is that, when an election is held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, being present, abstain from voting, are considered as acquiescing in the result declared by a majority (here two-thirds) of those actually voting, even though, in point of fact, but a minority of those entitled to vote really do vote. The fact that the election was held for the purpose of obtaining the necessary assent of two-thirds of the voters to the proposition on the day of the general election to fill offices does not change the rule of interpretation, nor, if so required to be held, does it show a purpose to require the assent of two-thirds of those who vote for officers and on other questions at the election. To so interpret the language used is to disregard its plain import and the current of judicial decisions in this country. If it meant that the assent of two-thirds of those voting at the general election for officers and on other questions was necessary to authorize the county to incur an indebtedness, then it was unnecessary and improper to allow any one to vote "No" on the proposition who may have voted for officers at that election. The general assembly took the view expressed of the section of the constitution under consideration, because the act under which the election was held provides: "If two-thirds of the legal voters voting on said proposition vote in favor of the proposition, then said fiscal court shall issue bonds as provided herein."

The question in Armour Bros. Banking Co. v. Board of County Com'rs of Finney County, 41 Fed. Rep. 322, arose under a statute authorizing the creation of an indebtedness provided the question was "submitted to a vote of the people at some general election, and if a majority of all the votes cast at the polls opened for that purpose shall be in favor of such assessment, then the debt may be created." The court said: "The only question involved is a construction of said section. Does it mean a majority of all the votes cast, or a majority of all the votes cast on that subject? There were 2,887 votes cast for county and state officers at said election, and only 1,527 on the matter of buying a farm and raising an assessment to pay for the same — 1,133 votes in favor, and 394 against. The defendant insists that, to justify the board of county commissioners in contracting the debt, it should have received a majority of all the votes cast at said election; while the plaintiff insists that only a majority of all the votes cast on that subject was required. The law says: `Unless the amount of taxes to be assessed shall be submitted to a vote of the people at some general election, and a majority of all the votes cast at a poll opened for that purpose shall be in favor of such assessment.' The words `a majority of all the votes cast' do not mean cast at a poll opened for the purpose of a general election, but cast for the purpose of such assessment, at a poll opened for that purpose. If the meaning had been otherwise, instead of saying `at a poll opened for that purpose,' the words `at said election,' after the word `cast,' would have clearly expressed the meaning defendant contends for. It is probable the law contemplates a separate poll or ballot box, but undoubtedly the same poll could be used as was used for county and state officers. Reading the statute in this manner solves the problem. The following authorities amply support...