Pendley v. Butler County Fiscal Court

• Decision Date: 19 April 1929
• Citation: 16 S.W.2d 500,229 Ky. 45
• Parties: PENDLEY v. BUTLER COUNTY FISCAL COURT et al.
• Court: Kentucky Court of Appeals

16 S.W.2d 500

229 Ky. 45

PENDLEY v. BUTLER COUNTY FISCAL COURT et al.

Court of Appeals of Kentucky

April 19, 1929

Appeal from Circuit Court, Butler County.

Action by W. A. Pendley, for himself and another, taxpayers, against the Butler County Fiscal Court and others, to enjoin the issuance of proposed road bonds. From a decree of dismissal plaintiff appeals. Reversed, with directions.

James R. Hines, of Morgantown, for appellant.

A. J Bratcher, W. A. Moore, and W. C. Barrow, all of Morgantown for appellees.

THOMAS J.

Under the provisions of section 4307 of the 1922 edition of Carroll's Kentucky Statutes, a special election was duly called and held throughout Butler county on the regular November election day in 1928, to take the sense of the voters in that county as to whether its fiscal court should issue the county's bonds to the amount of $150,000 for the purpose of building roads and bridges. The proposition carried by the requisite number of votes cast in that election, and this equity action was filed by appellant and plaintiff below, W. A. Pendley, a resident taxpayer of the county, for himself and other taxpayers therein, against appellees and defendants below, the fiscal court of the county and its members, to enjoin them from issuing the proposed bonds, or from in any manner attempting to carry into execution the mandate of the election. A number of facts are stated in the petition as grounds for the injunctive relief sought, but they were all disproven and abandoned at the trial, and on this appeal, except the one that the time of the election was not advertised in the newspapers published in the county for as much as thirty days "next before the day" of the election, as is expressly required by the language of the section, supra under which the election was called and held; but that, instead thereof, the first newspaper publication or notice of the election was on October 11, 1928, and which was only 27 days next preceding the election. The advertisement of the election by posted notices or by printed handbills was duly complied with as required by the statute. The trial court held that, under the undisputed facts as we have stated, there had been a "substantial compliance" with the provisions of the statute, and dismissed the petition, and to reverse that judgment plaintiff prosecutes this appeal.

It will be observed that the power and authority of the fiscal court of Butler county to create the debt to the extent of the proposed bonds does not exist, unless conferred upon it by the election, and which latter in turn is provided for by the section of the statute, supra. A vote in favor of the bond issue places an additional burden upon the taxpayers of the county, and constitutes a mandate to its fiscal authorities to levy an additional tax, within legal limits, upon the taxable property within the county with which to pay the interest and create a sinking fund for the final redemption of the bonds. It is essential, therefore, that before the additional burden may be imposed by an election under the statute its terms and provisions should be at least substantially complied with, and which seems, without exception, to be the universally declared rule. We have so held under similar statutes providing for special elections, and couched in substantially the same terms as is the one under consideration, in the cases of Gratzer v. Gertisen, 181 Ky. 626, 205 S.W. 782, Seiler v. Dillon, 190 Ky. 779, 228 S.W. 688, Bryant v. Lang, 197 Ky. 480, 247 S.W. 756, and Goin v. Smith, 202 Ky. 486, 260 S.W. 10.

In the Gratzer Case the sufficiency of the publication of notice for the changing of the location of a public road was involved, while the other three involved the sufficiency of the notice for a municipal election adopting the commission form of government in lieu of the councilmanic form of government, the statutes therein involved requiring such elections to be advertised and published in the manner indicated therein "for at least two weeks" preceding the election. The required newspaper publications were made, but not for the length of time specified in the statute "at least two weeks" preceding the election, and for that reason alone the election in each of those cases was declared invalid.

The cases of Central Construction Co. v. City of Lexington, 162 Ky. 286, 172 S.W. 648, Billington v. Moore, 168 Ky. 22, 181 S.W. 651, Hatfield v. City of Covington, 177 Ky. 124, 197 S.W. 535, Katterjohn v. Kelly, 191 Ky. 238, 230 S.W. 50, and Harrison v. Jackson County Fiscal Court, 197 Ky. 57, 245 S.W. 848, involved the validity of elections under statutory provisions for the incurring of bonded indebtedness of counties and municipalities and in all of them it was held by this court that the minimum time prescribed by the statute for the advertisement of the election was mandatory, and that unless it was complied with the election was invalid, regardless of the existence of facts as to other means of notifying the electors of the election, and in at least some of them, where the question was presented, it was also held that where the statute requires the prescribed notice to be given by posted handbills, and publication in some newspaper within the county or municipality, both of the methods must be resorted to in order to make the election valid.

In the Jackson Case no newspaper was printed in the county and under such circumstances we held that a newspaper notification was impossible and that the election would be valid without it the other requirements of the statute as to methods of notice having been complied with. In the Billington Case the first newspaper publication of the election, involving the same section of the statute as is here involved, appeared more than 30 days (34) next before the election, and it was repeated in each weekly publication of the paper except the last one immediately preceding the election, and which was the issue appearing on the day before the election. In that case we held that there was a substantial compliance with the requirements of the statute as to...