Stieritz v. Kaufman
| Decision Date | 10 November 1950 |
| Citation | 314 Ky. 10 |
| Parties | Stieritz et al. v. Kaufman et al. |
| Court | United States State Supreme Court — District of Kentucky |
Suit by Edward Stieritz, and others, against George J. Kaufman, Clerk of Campbell County Court, and others, to enjoin the officers of Campbell County from holding an election to take the sense of the voters of Newport on the question of abandoning the present city manager form of government. The Circuit Court, Campbell County, Ray L. Murphy, J., sustained special demurrers to the petition on the ground of absence of jurisdiction of the subject matter and plaintiffs appealed. The Court of Appeals, Stanley, C., held that the Circuit Court had jurisdiction but the petition was properly dismissed on the ground of legal insufficiency of the allegations of the petition, which had been tested by general demurrers.
Judgment affirmed.
1. Appeal and Error; Judgment. — An order of a county court calling an election in an ex parte proceeding is not a "judgment" of a court in the usual and ordinary sense or such as is contemplated by statute providing that an injunction to stay proceedings on a judgment shall not be granted by any other court than that in which judgment was rendered nor is such order of a character that an appeal might be taken to the Circuit Court. Civ. Code Prac. sec. 285; KRS 23.030.
2. Constitutional Law. — The calling of a referendum election is a political matter rather than judicial.
3. Elections; Injunction; Mandamus. — In an ex parte proceeding for an order of county court calling an election, County court is made agency to find that petition for election is in due form and meets requirements of statute and court has no discretion in matter other than to determine sufficiency of facts stated in petition and court may be compelled to conform by a writ of mandamus or mandatory injunction. KRS 23.030, 89.240.
4. Injunction. — Ordinarily a court of equity will not enjoin holding of an illegal election, but where it is not one in which a public office is involved and election would be void and cause unnecessary and improper expense, calling of election may be tried in an injunction proceeding.
5. Injunction. — Where plaintiff sought to enjoin officers of county from holding an election to take sense of voters of city on question of abandoning present city manager form of government and petition challenged constitutionality of act under which election was proposed, Circuit Court had jurisdiction of order of County Court calling election in injunction proceeding brought by plaintiff. KRS 89.680.
6. Municipal Corporations; Statutes. — Statute providing for election by voters of city on question of abandoning city manager form of government and requiring petition for election to be signed by number of legal voters of city equal to 25 per cent of votes cast in city at last preceding general election requires that number of persons who voted in any or all city elections may be determined by number of ballots cast and is definite enough to permit compliance therewith. KRS 89.680.
7. Injunction. — Where petitioner sought to enjoin officers of county from holding election on question of abandoning city manager form of government and alleged that 1,085 signers were persons who were not "registered voters" in city but language of statute was "legal voters" qualification of petitioners was to be judged as of day petition was filed in county court, that being day of application required by statute and term "registered voters" was not the criterion of qualification and allegation was fatally defective. KRS 89.680.
8. Elections; Injunction; Pleading. — In election contest pleader must name persons whose votes he questions as well as ground on which he challenges them, and if not timely amended, indefinite and general allegations must be stricken out and same rule applies in suit to enjoin holding of an election.
9. Injunction. — Where plaintiff sought to enjoin holding of election by officers of county to take sense of voters of city on question of abandoning city manager form of government and alleged that 100 of the signatures on petition for holding of the election were forgeries but failed to name persons whose votes were questioned, allegation was too indefinite. KRS 89.680.
10. Injunction; Pleading. — In suit to enjoin officers of county from holding election on question of abandoning city manager form of government, allegations that statute providing for calling of election was void for want of clarity and definiteness and that petition for election was ineffective because it failed to state number of votes cast in city at last preceding general election or number of legal voters on petition and allegation that a certain number of signatures on petition were void were too indefinite and did not state a cause of action. KRS 89.680.
Fred M. Warren and Geo. T. Muehlenkamp for appellants.
Charles E. Lester, Jr., Lawrence Riedinger, Jr., Russell Howard and Joseph S. Rolf for appellees.
Before Ray L. Murphy, Judge.
STANLEY, COMMISSIONER.
Affirming.
An order has been heretofore entered affirming the judgment because of the urgency and time was taken for the preparation of this opinion.
The suit sought to enjoin officers of Campbell County from holding an election to take the sense of the voters of Newport on the question of abandoning the present city manager form of government. KRS 89.680.
The order of the county court recites the finding that the petition for the referendum was signed by voters equal to twenty-five per cent of the votes cast in the city at the 1949 election, the last preceding regular election, as prescribed by the statute. The circuit court sustained special demurrers to the petition on the ground of absence of jurisdiction of the subject matter. The plaintiffs declined to plead further. There was no objection to the defendants' motion for judgment on the pleadings. Thereupon, the court considering "the condition of the record," dismissed the petition. The plaintiffs have appealed.
The circuit court thought he had no jurisdiction because, apparently, the order directing the holding of the election was a judgment of a court of proper jurisdiction, and Sec. 285 Civil Code of Practice, provides that an injunction to stay proceedings on a judgment shall not be granted by any other court than that in which the judgment was rendered.
An order of a county court calling an election in an ex parte proceeding is not a judgment of a court in the usual and ordinary sense or such as is contemplated by that provision of the Code; nor is it of...
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