Turpin v. Madison County Fiscal Court , 105 Ky. 226 ( 1899 )

JUDGE HAZELRIGG

delivered the opinion of the court.

By Ms suit in the Madison Circuit - Court, the ’appellant, a citizen and taxpayer of this county, seeks to enjoin the issual, sale, and delivery of certain bonds of the county about to be issued by the fiscal court in virtue of authority claimed to have been conferred on that court by an election for that purpose held in November, 1898. His first objection grows out of alleged irregularities in the preliminary election of November, 1896, when the question of authority to free the turnpikes of the county was submitted to the vote of the people, under the act of March 17, 1896. That act provides that “upon written application, directed to the couniy judge of any county in this Commonwealth, asking for a vote in said county upon the proposition to have free turnpike and gravel roads in' said county, signed by a number of voters of said county, equal to fifteen per cent, of the vote cast at the last preceding general or county election in said county, it shall be the duty of the judge of the county court, at the next regular term thereof after receiving said petition, to make an order in his book, directing an election to be held,” etc. It appears that beginning on the first day of the regular July term, 1896, of the Madison County Court and thereafter, at called terms of that court, during the month of July, written petitions Or applications, of the character required by the act, supra, were presented to the county judge, and filed in the county court, and the number of signers thereof was more than fifteen per cent, of the vote cast at the last preceding-general and countyelection. The question raisedis whether the applications must have been filed at the regular July term in order to conform to the requirements of the act. The question has been fully answered in the case of Smith v.Patton, 19 R., 165, [45 S. W., 459]. The language of,the act on the point involved is similar to the language of the act there construed, and it was contended that the petition for a vote, under the “local option” statute, could not be received and filed at. a called term, but only at a regular term of the county court. This court then reviewed the cases of Doores v. Varnon, 94 Ky., 507, [22 S. W., 852]; Webb v. Smith, 17 R., 1308, [34 S. W., 704]; Wilson v. Hines, 18 R., 233, [35 S. W., 627]; and Cress v. Com., 18 R., 633, [37 S. W., 493]; and which were supposed to support the contention that the petition for a vote must be filed at a regular term- — and it was held that such .petition and application might be filed at a special or called term. We are of the opinion that the written applications presented to the county judge, and filed by him at the regular and called terms in July preceding the order for the election made at the' regular August term, 1896, were in all respects in the matter of their form and substance, and in the manner and time of their being filed, entirely in conformity with the requirements of the law; and this is true as well of the orders subsequent to such filing, including the order of election. The vote stood 3,115 in favor of free turnpike and gravel roads, and 888 against them, and the vote was duly canvassed, and the result certified, by the proper board, along with the other election returns, as required by law.

But- — and this brings us to the appellant’s second objection — this result, or the certificate of the result, of the vote, while it was returned as the law requires, was not spread on the order book of the county court at the next regular term of the county court after, it was so lodged. As the act directs this to be done, it is. urged that the election must be held to be ineffectual fqr the purpose for which it was held. It does appear, however, that the county judge at a subsequent term did have the result and certificate spread on the order-book, and this, we think, was a sufficient compliance with the law. Besides, we are of opinion that the election would in no .respect have been rendered invalid or ineffectual, even had the order never been spread on the order book, the provision so requiring being merely directory. It further appears that, in pursuance of the provisions of the act, mpra, the fiscal court made some effort to take a vote at the November election, 3897, on the question whether bonds should be issued for the purchase and maintenance of the' turnpike roads of the county free of toll to the traveling public. But, while the vote seems to have been sufficient to authorize the issnal of such bonds, the fiscal court did not exercise its authority to do so, but ordered and called an election on this question to be had at the November election, 1898. It is now contended that the election of.1897 must operate as a bar to any further election. We think otherwise. If the bonds might have been issued under the vote in 1897, and we see no reason why this might not have been done, still they were not so issued; and the governing authorities of the county might abandon or refuse to exercise the right conferred by that vote, and acquiesce in the general belief that the vote was not in fact sufficient to authorize the issual of the bonds. Such, indeed, was the purport of the decisions of the courts at that time. It -was for that reason that no steps were taken to issue and sell the bonds of the county under the vote of 1897. Another election, altogether regular in its call and manner and time of holding, was held at the November election, 1898. The orders precedent to, and subsequent to, the holding of this election, were in strict accord with the provisions of the law. The vote stood 3,013 in favor of the issual of the bonds, and 673 against it, and hence the proposition to issue them carried, under the law aS recently construed by this court. Montgomery County Fiscal Court v. Trimble, 20 R., 827, [47 S. W., 773].

The only remaining question is with respect to the nature and form of the bonds proposed to be issued. The act provides that the bonds shall “bear interest not to exceed 6 per cent, per annum with coupons attached, payable semiannually; these bonds to be in denominations of not less than one hundred dollars, or more than one thousand dollars, to run not more than thirty years and to be redeemed within that time at the pleasure of the court and to be sold at not less than par value.” It appears that the bonds proposed to be issued are to run not more than twenty years, and the fiscal court has fixed the time for their redemption after the expiration of six years, and within twenty years, from the date of their execution; certain of them falling due the sixth year after the date of their execution, and certain others falling due each successive year thereafter, until the twentieth year, when the last of them are to be redeemed. It is contended that this plan of redemption is not in conformity with the provision that the redemption is to be “at the pleasure of the court.” We are of opinion, however, that to so fix the time of redemption, as is done-in the bonds proposed, is the exercise of the “pleasure of the court,” within the meaning of that provision of the act. The statute did not contemplate that the time of redemption was to be left uncertain. This would certainly affect injuriously the value of the bond. It was the intention of the Legislature, we think, to leave the time at which the bonds were to be redeemed to the pleasure of the court within the thirty-year period, and this pleasure was to be exercised and the time fixed before the bonds were issued. In our opinion, after a careful examination of the record, the various orders, steps, and proceedings in the matters pertaining to.the elections of 1896 and 1898 and the issnal of the bonds, are absolutely regular and in accordance with the law, as is also the order for the annual levy to pay the interest on the bonds, and to create a sinking fund for their redemption, as provided in their terms. The judgment below so holding is affirmed.