Montgomery County Fiscal Court v. Trimble

47 S.W. 773, 104 Ky. 629, 1898 Ky. LEXIS 210

• Court: Court of Appeals of Kentucky
• Decided: November 2, 1898
• Status: Published

Opinions

JUDGE PAYNTER

delivered the opinion oe the coubt.

Under “An act to provide free turnpike and gravel" roads,” approved March IT, 1896, there was submitted, at the November election, 189T, 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 proliibits 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 he 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-samé as the one who takes an interest in and votes upon it, we should be satisfied that the language used elearly 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 in-debtedness 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 conven tion 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 ¿he 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 the conclusion that only a majority of the votes cast on the subject of the assessment were required: Commissioners v. Winkley, 29 Kan. 36; State v. Echols, (Kan. Sup.) 20 Pac. Rep. 523; Cass Co. v. Johnston, 95 U. S. 369; Walker v. Oswald, 11 Atl. Rep. 711; Gillespie v. Palmer, 20 Wis. Wis. 544; Sanford v. Prentice, 28 Wis. 358.”

In Metcalfe y.City of Seattle,! Wash. 301, [25 Pac. 1013,] the court had under consideration a question involving the construction of a provision of the constitution of the state authorizing a city to increase its indebtedness “upon the assent of three-fifths of the voters herein voting at an election to be held for that purpose.” It said: “In response to the second question, we have not the least hesitation in answering that the three-fifths majority required to carry an election in favor of increasing municipal indebtedness is three-fifths of those persons who actually vote at the election, and not three-fifths of all those who may have the right to vote thereat. The language of the constitution is that no municipal corporation shall become indebted beyond one and one-half per cent of its taxable property ‘without the assent of three-fifths of the voters therein voting at an election to be held for that purpose/ How could words be plainer? It is three-fifths of the voters voting, not of all persons who might vote, but may or may not do so. The word ‘therein,’ placed between ‘voters’ and ‘voting,’ merely qualifies the persons who might vote, not the body of voters who must vote to constitute a lawful majority. At certain elections many persons residing outside of the city have their voting places assigned within the city limits; but, at these particular-elections, it is only the voters ‘therein’ — residing therein — . who can vote. Perhaps a longer phrase might have-served to remove all doubt from every mind, but to us the interpretation seems clear as it is.”

In Walker v. Oswald, 68 Md.150, [11 Atl.712,] the statute authorized the selling of spirituous liquors in a county, provided “a majority of the voters of said county shall determine by their ballots in favor of the high license law.” The court said: “It thus appears, and in fact it is conceded, that the number of votes cast in favor of the high license law was not equal to a majority of all the votes cast at the same election for the several candidates for congress, though the votes actually cast in favor of this law constituted a majority of all the votes polled on that particular subject. The single question, therefore, presented by this appeal, is whether, under these circumstances, the act became operative and effective; or, stated in other words, did the adoption of the act depend upon its receiving in its favor a majority of all the votes cast at that elction upon some other subject or subjects, or upon its receiving a majority of the votes cast specifically for and against its adoption? It has been settled, both in England and this country, by an almost, if not quite, unbroken current of judicial decisions from the time of Lord Mansfield to the present day, 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 of those actually voting, even though, in point of fact, but a minority of those entitled to vote really do vote. * * * Conceding this to be true with respect to a special election held for the purpose of submitting a single question to the popular vote, it is insisted on the part of the appellant that a different principle should prevail in a case like this, where, at a general election, the measure, though receiving a majority of the votes cast on that subject, failed to receive a majority of the votes cast upon some other subject. Hence, as we have already stated, the sole ground upon which it is claimed that the act in question failed to become effective, is that at-the general election when the subject was voted on, less than a majority of those who voted for the -congressional candidates cast their ballots Tor high license law,’ and not that a majority of those who voted on this subject did not vote in favor of it. This objection to the adoption of the act is founded exclusively upon the ■construction which is sought to be placed upon the words of the eighth section, ‘a majority of the voters of said county/ taken in connection with the evidence furnished by the vote on the congressional canvass, that there were more votes in the county than the number who voted upon this measure. If this construction, which confines the language to what is alleged to be its literal import, without reference to the provisions of the preceding section, is to prevail, it would be, it seems to us, as applicable in the case of a special election where but one subject is submitted, as it is claimed that it is in the case of a general -election, where several subjects or persons are to be voted for; the ofily difference between the two instances being in respect to the evidence which might be adduced to ascertain the actual number of the voters of the county. In regard to a general election, it is urged that the highest aggregate vote cast furnishes the evidence as to the number of the voters of the county. At a special election it is not improbable that only a minority of tbe voters, well known to be an unmistakable minority, may vote. This fact might be susceptible of proof — might be in reality self-evident. Yet in the latter instance those who absent themselves from the polls, and those who, being present, abstain from voting, are regarded as assenting to the result declared by those who do vote. Upon what principle would it be incompetent to apply the same presumption to those who, though attending a general election and voting on other subjects, abstain from voting upon one particular matter like the act in question? The very concession that a minority may elect necessarily implies that there is a larger • number of voters who do not vote, of whom that minority is merely a fraction. Hence, the admission that a majority of those entitled to vote did not vote does not preclude the minoritj7 who actually do vote from determining the result by their ballots.”

In Commissioners of Marion Co. v. Winldey, 29 Kan. 40, the statute was to go into operation, and, “if a majority of the votes cast are for the bounty, they shall declare said law to be in full force and effect.” The proposition was voted for on the same day the general election for township officers in the county was held. The court said: “The electors who were present at the polls at the called election, and, while voting for township officers, did not vote upon the bounty proposition, are presumed to assent to the ex-pi’essed will of the majority of those voting thereon.”

The conclusion we have reached, and the opinions from which we have quoted, are supported by State v. Barnes, 3 N. D. 319, [55 N. W. 883;] County of Cass v. Johnston, 95 U. S. 360; Carroll Co. v. Smith, 111 U. S. 565, [4 Sup. Ct. 539;] Gillespie v. Palmer, 20 Wis., 544; Holcomb v. Davis, 56 Ill. 413; Smith v. Proctor, 130 N. Y. 319, [29 N. E. 312.] We are of the opinion that, when two-thirds of those voting upon the proposition to issue bonds voted therefor, the fiscal court was authorized to issue them for the purpose of buying and maintaining free turnpikes, unless there is some other legal or constitutional objection thereto not raised in this case. The case of Belknap v. City of Louisville, 99 Ky., 474, [36 S. W., 1118], is overruled in so far as it is in conflict with this opinion. The cases of McGoodwin v. City of Franklin, 18 Ky. Law Rep., 752 [38 S. W., 481], and City of Owensboro v. Baker, 18 Ky. Law Rep., 324 [37 S. W., 1129], are overruled. The result in the Belknap case would have been the same had the court taken the view of section 157 which is herein expressed, because of the terms of the act and ordinance under which the election was held.

This question involves important public interests. The rights of the voters to determine, in the manner authorized by the Constitution, what indebtedness, if any, municipalities or counties shall incur, should be preserved. We have been called upon to re-examine the question involved, and, having reached a conclusion that the opinion heretofore expressed as to section 157 is incorrect, we think it proper to so adjudge. “When a question involving important public or private rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only the right, but the duty, of the court,when properly called upon, to re-examine the questions involved, and again subject them to judicial scrutiny. We are by no means unmindful of the salutary tendency of the rule stare decisis; but at the same time we can not be unmindful of the lessons furnished by our own consciousness, as well as by judicial history, of the liability to error and the advantages of review.” Cooley, Const. Lim. (5th ed.), note to page 65. The judgment is reversed for proceedings consistent with this opinion.