
    Case 41 — Action for an Injunction —
    Dec. 20.
    City of Louisville v. Board of Park Commissioners.
    APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.
    Judgment for Defendant and Plaintiff Appeals.
    Reversed.
    Validity of Ordinance — Elections—Submission of Question as to Creating Indebtedness — Power to- Compel a Recanvass of' the Vote — -Estoppel—Mandatory Injunction.
    Held: 1. An 'ordinance providing for a submission to tbe voters of a city of the question whether bonds to a certain amount should be issued by the city for park and sewer purposes related to a single subject, and the submission was not invalidated by reason of tbe fact that tbe purpose to which tbe proceeds of the bonds were to be applied was stated in submitting the question.
    2. Though the election commissioners have canvassed the returns and certified the vote, showing a majority-'of more than two-thirds in favor of the bond issue, and the bonds have been executed .and delivered, one-half to the board of park commissioners and one-half to the city treasurer, the commissioners may be required to recanvass the vote, and count the votes of certain precincts which were omitted from the former count, no bond having passed into the hands of any purchaser.
    3. Though the law under which the election was held and the vote was canvassed has been repealed, and a new board of election commissioners has been created, the new board, having ¡the same powers as the old board, may be compelled to re-canvass the vote; and, though the members of the board had not been appointed when the chancellor rendered his judgment, yet, as the judgment must be reversed to the extent that -it refuses an injunction restraining the city from disposing of the bonds, the members of the board appointed since the judgment was rendered may be made parties on the return ' of the case, and be required by mandatory injunction to re-canvass the vote.
    4 The count judicially knows that ©lection commissioners have been appointed and are now in office under the new law.
    5. While mandamus would ’ordinarily be the proper remedy to ■compel the election commissioners to reoanvass -the vote, yet, in a suit brought primarily to restrain the ©ale of the bonds until the result of the election can be determined, plaintiffs may have a mandatory injunction ¡to compel .a recanvass of the vote.
    H. L. STONE, FOE APPELLANT.
    PENNETT H. YOUNG, H. H. HERR, PIRTLE & TRABUE and CHARLES A. NELSON, foe appellee.
    (No briefs in the record.)
   Opinion of the court by

JUDGE DuRELLE —

Reversing.

By demurrer to the petition, the following facts are admitted to be true: The city of Louisville is a city of the first class, with authority to govern itself by ordinances ancLresolutions for municipal purposes not in conflict with the Constitution or laws of this State or of the United States. 'The board of park commissioners bas, by law, the care, management, and custody of all parks and grounds used for park purposes, and bas power, whenever in its opinion property shall be needed for park purposes by resolution reciting such need, to order a condemnation of such property. For the purpose of raising money for the purchase or improvement of lands for park purposes, the general council nf the city is authorized by ordinance to submit to the qualified voters the question whether bond's shall be is-sued, and if two-thirds of those voting assent the bonds are required to be delivered to the board of park commissioners. An ordinance was .passed by the general council providing for the submission to a vote of the people at the November election, 1900, of the question whether $500,000 of 8 per cent. 40-year bonds of the city of Louisville should be issued, $250,000 of the proceeds thereof to be used by the board of park commissioners in acquiring the title by purchase or condemnation for park purposes of Central Park, or duPont square, and the other $250,000 of the- proceeds thereof to be expended under the supervision of the board of public works in the construction of such sewers in the city of Louisville as. should be provided for by ordinance. The question wa.s submitted to the voters of the city upon the official ballots in this form: “Are you in favor of the issuance of $500,000 of bonds by the city of Louisville for the construction of sewers and for the acquisition of tracts of land for park property in the city of Louisville, as provided in the ordinance approved October IT, 1900?” The county board of election commissioners of Jefferson county canvassed the returns, and certified that 10,252 votes were cast in favor of the issuance of the bonds, and 4,951 votes against their issuance; thus showing a majority of more than two-thirds ■of the votes cast on that question in favor of the bond issue. But the board of election commissioners in the canvass of the vote on question of issuing bonds failed and refused to count the vote in eighteen precincts of the city of Louisville in which votes were cast for and against the bond issue, and did not canvass or count the votes for and against that proposition, although returns were made to the clerk of the Jefferson county court by the precinct election officers from each of these precincts, of the vote cast for and against the issuance of bonds, which returns, if they had been canvassed by the county board of ■election commissioners, might have changed the result of the vote on that proposition. The bonds were prepared, executed, and delivered, one-half to • the board of park commissioners, and one half to the city treasurer, and none of them was sold or delivered to any purchaser. There being doubt as to the legality of the canvass of the votes for and against the proposition to issue bonds,' and as to whether that proposition was carried as- required by law, and further doubt as to whether the double proposition was lawfully submitted in one question upon the ballots, the general council passed a resolution directing the city attorney to institute proceedings' to have the question of the validity of the bonds tested and determined by the courts. This suit was thereupon brought in equity, setting forth the facts recited above, with others unnecessary to be here mentioned, and praying — First, that the board of park commissioners, the board of public works, and the city treasurer be enjoined from selling or disposing of'the bonds; and, second, that the county board of election commissioners be required to reconvene and recanvass the vote cast for and against the proposition to issue bonds, to include in such recanvass the return from the eighteen precincts, and to certify the result of such recanvass, including the eighteen precincts referred to, and that the county pourt clerk be required to furnish the board of election commissioners the returns from such eighteen precincts. A general demurrer by all the defendants and a special demurrer to the jurisdiction by the board of election commissioners were sustained to the 'petition, and, the city of Louisville standing 'by its pleading, the action was dismissed.

The question of statutory authority to submit the question of incurring indebtedness hr issuing bonds for sewer purposes to the voters is not raised by the pleadings nor argued by counsel, and is not decided.

The first objection argued we do not think can be sustained. The subject of the ordinance was single. It was the issuance of city bonds to the amount of $500,000. The mere statement of the purposes for which the proceeds of the bonds were to be expended does not vitiate the submission of the single question whether the liability- is to be incurred. As said by the chancellor, it “is a protection to the voter, rather than a danger.” The question submitted was whether the city 'Should be authorized or permitted to become indebted to an amount exceeding the income and revenue provided for that year, viz. to the extent of $500,000, to 'be paid out of the income and revenue-of other years. It can hardly be doubted that if the question submitted had been whether the city should incur this liability, without any statement of the purpose, it would have been a proper submission, so far as the form of the question is concerned.

The other objection presents .a different question. Undoubtedly it was the duty of the county election commissioners to canvass all the returns. It was their duty to canvass the returns from the eighteen precincts in which it is admitted votes were cast for and against this proposition, and the returns from which were not canvassed at all. It may be possible that the returns in those precincts were in such shape that they could not be counted, but it was none the less the duty of the board to canvass them, and, if found' countable, to count and' certify them. The averment that the commissioners of election refused to canvass returns duly made by the election officers in about one-tenth of the precincts of the city is an averment of facts which constituted fraud. If this body of ministerial officers — this mere counting machine, as it has been called —can refuse to count, or even consider, the election returns from a tenth of the city precincts, they can exercise their pleasure in like manner as to any proportion of the returns. If they can exclude one-tenth of the voters from participation in such an election, they can, with equal propriety, exclude nine-tenths. If this is so, the constitutional bulwark against the imposition of liability upon the city and its taxpayers is waste paper. ¡Such disfranchisement of voters upon a matter which involves property rights — such a wanton invasion of the sacred right of suffrage — can not be tolerated for a moment, if the courts have the power to intervene. It makes no difference how ^beneficial was the object intended to be attained by the submission to popular vote, nor how .much the members of the court may desire the attainment of that object. 'The right of the citizen to vote upon the question, and to have his vote counted and recorded, is too high to be overridden, even for the attainment of that object.

The - question presented is whether there is a remedy. The entire argument is addressed to that proposition. Over six months elapsed from the date of the election before the bringing of the suit. There is no specific provision for a Contest of the result of the submission of such a question to popular vote, as there is in the case of local option elections. No contest has been instituted. It is somewhat difficult to determine upon whom notice of contest could have been served. Upon the averment of facts which constitute' at least constructive fraud, and which are admitted by demurrer, can the courts interfere to compel this ministerial board of election commissioners to perform its duty, — to canvass the returns, and all the returns, and certify the result of the election in accordance therewith? T\Te think this can be done. It was done in Clark v. McKenzie, 7 Bush, 526. In that case, as in this, the board had already acted in the matter; but this, court held, through Judge Lindsáy: “Until they have performed the exact duty imposed upon them by law, they must be considered as in default; 'and in a case like this it would be a legal anomaly to allow the examining board to rely upon the fact that they had issued the certificate of election to a party who had not received the largest number of votes, Contrary to an express provision of the law, as a sufficient reason why they should not be compelled to perform an imperative duty.” In Riggs v. Stevents, 92 Ky., 393 (13 R. 631) 17 S. W., 1016, this court, through Judge Holt, upon averments Which, without specifically charging fraud or mistake, showed facts which constituted fraud or mistake, enjoined a tax which was claimed to have been voted for the establishment of a school. There is no estoppel in this case. Not a bond has passed into the hand's of a purchaser. The board of park commissioners may be a body corporate, with power to sue and be sued, etc., buit it is none the less an arm of the city of Louisville; and-the fact that the city caused the bonds to be executed, and, in a sense, issued to two of the agencies by la.w provided for its' exercise of municipal governmental powers, can not constitute an estoppel against it.. It might as well be said that one who sends a clerk to the bank with a promissory note is estopped to call him back.

It is objected that by section 2 of the act of October 24, 1900, which went into-effect after the election of November of that year, the Goebel election law was repealed, and a new county board of election commissioners created, consisting of the sheriff of the county and two commissioners appointed by the State board of election commissioners; that by the repeal of the law under which the election was held the board of election commissioners appointed under it became functus officio, had no more power to act in any manner, and in.fact no legal existence; and as the new board at the date of the judgment had not been appointed there was no one in existence upon whom a mandamus or a mandatory injunction could operate. In Clark v. McKenzie, supra, it was held that the mandamus would lie against the successors in office of the board which should have performed the duty. That doctrine could not have been applied by the chancellor at the time he rendered his judgment. But "the court judicially knows that, under the new act, election commissioners have been appointed and are now in' office, with power to perform the same duties imposed on the old board. It is unnecessary, therefore, to consider what the chancellor might have done. On the return of the case the petition can be amended, and the members of the present board be made parties. As the old boards has not performed its duty, its successor may be required to perform it. Mullins v. McNeil, 109 Ky., 593 (22 R., 1112) (59 S. W., 849).

Mandamus would undoubtedly be the proper remedy if the complete canvass of the returns were the only relief sought. Primarily however, this suit is to restrain the sale of the bonds until the result of the election can be determined. This being so, we see no reason why, having jurisdiction for the one purpose, we may not, by the correlative writ of mandatory injunction, grant the relief ordinarily effected by the writ of mandamus.

The judgment is reversed, and cause remanded, with directions to overrule the demurrers to the petition and for further proceedings consistent herewith.'

Judge Guffy’s

specially concurs:

I concur in the reversal of the judgment herein, but I do not concur in so much of the opinion as holds valid an ordinance submitting to a vote as one proposition the two objects named, viz. park and sewer bonds. It is provided in the charter of Louisville, in section 2777, Kentucky Statutes, that “no ordinance shall embrace more than one subject, and that shall be expressed in its title.” If sewers and parks are not different subjects, it is hard to conceive of what would be different subjects or objects. The provision quoted is similar to the provision of the Constitution, and both were adopted for a wise and proper purpose; and, as I think, the main purpose was to require every act to stand or fall upon its awn merits, and, if there ever can be a case in which the provision in question ought to be enforced, it is in regard to such ordinances and propositions as the ones under consideration.

I think the ordinance is utterly void, and the vote .cast upon the subjects a nullity.  