Smith v. Livingston County

• Decision Date: 20 June 1922
• Citation: 242 S.W. 612,195 Ky. 382
• Parties: SMITH v. LIVINGSTON COUNTY ET AL.
• Court: Kentucky Court of Appeals

242 S.W. 612

195 Ky. 382

SMITH v. LIVINGSTON COUNTY ET AL.

Court of Appeals of Kentucky.

June 20, 1922

Appeal from Circuit Court, Livingston County.

Action by John L. Smith against Livingston County and others to enjoin the fiscal court of that county and its agents from issuing, offering, or selling bonds of the county. From a judgment dismissing the petition, after general demurrer thereto was sustained, plaintiff appeals. Affirmed.

Chas Ferguson, of Smithland, for appellant.

J. R Wells, of Smithland, for appellees.

HURT C.J.

This was an action by a citizen and taxpayer of Livingston county to enjoin the fiscal court and its agents from issuing offering, or selling $50,000, par value, in amount of the bonds of the county, which were alleged to have been authorized by the votes of a majority of the legal voters of the county, cast at an election held on the 31st day of January, 1920. The election was a proceeding under section 4307, Ky. Stats., and section 157a of the Constitution, for the purpose of obtaining the consent of the electorate of the county to the making and selling of $200,000 of county bonds, the proceeds to be applied to the building, construction, and reconstruction of public roads and bridges of the county, as authorized by section 157a of the Constitution. The necessary majority of the legal voters appearing to have given their approval to the proposition, on the 3d day of November, 1921, the fiscal court made an order directing that $50,000 in amount of the bonds authorized be offered and sold for the purpose of providing the means for the construction of the road designated as the "Ohio River Federal Aid Highway," which runs through the county, and also a road designated as the "Central Highway" from Smithland to Iuka, which are points in the county. The bonds have not yet been executed or sold, and to restrain the fiscal court from so doing the appellant by his petition presents many alleged reasons by virtue of which he contends that the bonds were never legally authorized and, if authorized, the purpose to which the proceeds of the bonds directed to be sold is to be applied is illegal, and the fiscal court is without authority to so appropriate the proceeds. The circuit court sustained a general demurrer to the petition as amended, and dismissed it, and from the judgment the plaintiff in the action has appealed.

The objections to the validity of the election upon which the authority to issue the bonds depends, will be considered in their order:

(a) It is urged that it was unlawful to order the election, because an election had been held upon the subject on the 4th day of November, 1919, which resulted in a majority adverse to the proposition to issue bonds, and the election in controversy was ordered on the 1st of December, 1919, thereafter. This objection appears to be without merit, since the statutes governing such elections do not provide that an election resulting adversely to a proposition to issue bonds for road and bridge purposes shall be a bar to the holding of such an election for any length of time thereafter, and the fact that it is entirely silent upon the subject would seem to indicate that the intention of the lawmakers was to the contrary. Besides, the averments of the petition as amended failed to show that the proposition submitted at the election held on November 1, 1919, was the same as that submitted on January 31, 1920.

(b) It is further contended that the petition asking the election contained conditions not authorized by law, and that the county court should have rejected the petition, and refused to order the election, or else should have embraced all of the conditions upon which the issual of the bonds was sought, in the order calling the election, which latter thing it is averred the court did not do. This argument seems to go to the extent of insisting that, the conditions contained in the petition being illegal, the county court was without authority to make the order calling the election with the proposition embracing the conditions, and, if it ignored the conditions in the order, the submission was unauthorized. The petition requested the county court to submit to the voters the proposition to authorize the fiscal court to issue and to sell the bonds, "the proceeds to be used in the construction of the proposed federal highway, known as the 'Ohio River Route,' through said county from McCracken county to Crittenden county, crossing the Cumberland river at Smithland; the construction of county seat connection road with Lyon county at Iuka, with Marshall county at Tennessee river, with Pope county, Ill., at Berry Ferry, and with Hardin county, Ill., at Carrsville." It then provided that, if any funds were left over from the construction of the roads mentioned, they should be applied to other designated roads in the county.

True, the statute (section 4307, Ky. Stats.) does not provide that freeholders seeking the submission of the question of creating an indebtedness in the way of bonds for the building, construction, and reconstruction of roads and bridges should specifically authorize the inclusion in the petition of the names of the roads upon which the proceeds of the bonds shall be used, but the statute does not prohibit such designation, and is therefore not illegal or unlawful. In Percival v. City of Covington, 191 Ky. 337, 230 S.W. 300, it was held that inclusion of a condition of the bonds in the order which submitted the proposition for the creation of a debt, although not required to be in the order of submission, was not unlawful, and, being a condition upon which the voters gave their assent to the creation of the debt, could not be ignored. In Scott v. Forrest, 174 Ky. 674, 192 S.W. 691, followed by Hall v. Montgomery County, 192 Ky. 716, 234 S.W. 274, and Reynolds v. Bracken County, 192 Ky. 180, 232 S.W. 634, it was held that if, previous to an election upon a proposition to create a debt for which bonds of the county were to be issued, the fiscal court should make an order designating the roads in the construction of which the proceeds of the bonds would be expended, it was in the nature of a contract with the electorate, and could not be ignored. Hence, in the instant case, the inclusion of the roads to be constructed by the proceeds of the bonds appearing in the petition seeking the submission, was not illegal, nor, if such condition had been stated in the order of submission, would the order thereby have been invalidated.

The order of the county court submitted the proposal to the electorate for their assent to issue and sell the bonds "in accordance with said petition," and hence it appears that the order of submission did not ignore the conditions upon which the petitioners sought the submission, and the appropriation of the proceeds of the bonds, as provided in the petition, will not in any way violate the terms and conditions upon which the assent of the voters was obtained.

(c) The fact that the petition filed in the county court, seeking the submission, was not dated, is immaterial, as the statute does not require it to be dated, nor is there any requirement that the petitioners attach a date to their signatures. The date of the petition is when it is filed in the county court.

(d) The petition did not name any day upon which it was desired that the election should be held. It did request that the election be held at the earliest possible date upon which under the law it could be held. The court ordered it held at the earliest possible date which under the law it was authorized to be held, fixing a date. It has been held in Denton v. Pulaski County, 170 Ky. 33, 185 S.W. 481, and in Pendleton v. Letcher County Fiscal Court, 194 Ky. 688, 240 S.W. 358, that the omission from the petition of the day or days upon which the election should be held was immaterial, as the county court was authorized to fix the date of the election within the time provided by law, and such was done in the instant case.

(e) The petition to the county court consisted of 24 separate petitions, exactly the same in their contents, and neither one of them was subscribed by as many as 150 freeholders, although all of them contained the signatures of several hundred freeholders, and this fact is referred to as a fatal defect in the proceedings. The signatures to the various copies of the petition were the requisite number, however. Under such facts, the county court may treat all the petitions as constituting one, and the various copies as being parts of the one petition necessary, and, when all of them are subscribed by the requested number of freeholders and legal voters, jurisdiction is conferred upon the court to order the election to be held. Hopkins v. Dickens, 188 Ky. 377, 222 S.W. 101; Smith v. Patton, 103 Ky. 444, 45 S.W. 459; Tousey v. De Huy, 62 S.W. 1118, 23 Ky. Law Rep. 458.

(f) The order of the county court providing for the election directed the sheriff to advertise the election and the objects of it for 30 days next before the day upon which it was to be held in a newspaper having the largest circulation in the county and by four printed handbills posted in each precinct and one at the courthouse door. After the election the sheriff made a report of his actions to the county court, and, while the writing returned by him stated that he posted the written handbills as directed and required, he made no mention of having advertised the election in the newspaper. The petition alleges that at that time a newspaper was published in the county. The plaintiff and appellant does not aver that the notice of the election and its purpose was not published in the newspaper, nor does he allege that the election was not advertised in any way required by...