
    Davis v. City of Newport et al.
    (Decided June 16, 1931.)
    
      JAMES B. MILLIKEN for appellant.
    ARTHUR J. DALY for appellees.
   Opinion op the Court by

Judge Willis

-Affirming.

Newport, a city of the second class, operates under the commission form of government. An ordinance was enacted providing for the funding of a floating indebtedness of the city. Edward J. Davis, a citizen, resident and taxpayer of the city, instituted an action against the city and its administrative officials to declare the ordinance invalid and to enjoin the issuance and' sale of the bonds. The circuit court sustained a demurrer to the petition, and the action was dismissed when the plaintiff-declined to plead further. The plaintiff has prosecuted an appeal, insisting that the city may not issue bonds to fund a floating debt under the circumstances delineated in the petition. It is not contended that the averments are adequate to affect the validity of the debts to be funded, but it is insisted that no statutory authority exists for the issuance of such bonds. The same contention was advanced and found unsubstantial in a similar case between the same parties. Davis v. City of Newport, 224 Ky. 546, 6 S. W. (2d) 693. The authority against the argument for appellant is abundant. Vaughn v. City of Corbin, 217 Ky. 521, 289 S. W. 1104; City of Covington v. O. F. Moore Co., 218 Ky. 102, 290 S. W. 1066; Wilson v. City of Covington, 220 Ky. 795-798, 295 S. W. 1069; Welch v. Nicholasville, 225 Ky. 312, 8 S. W. (2d) 400; Wilson v. Board of Education, 226 Ky. 476, 11 S. W. (2d) 143; Masonic Home v. City of Corbin, 229 Ky. 375, 17 S. W. (2d) 215; City of Frankfort v. Fuss, 235 Ky. 143, 29 S. W. (2d) 603 ; Hogan v. Lee Fiscal Court, 235 Ky. 100, 29 S. W. (2d) 611; Pike County v. Day & Night National Bank, 236 Ky. 202, 32 S. W. (2d) 969; Eliott v. Fiscal Court of Pike County, 237 Ky. 797, 36 S. W. (2d) 619; Hall v. Fleming County Fiscal Court, 239 Ky. 425, 39 S. W. (2d) 656.

The present appeal is governed by the previous decisions which make it plain that the demurrer to the petition was properly sustained. The allegations, so far as necessary to note them in this connection, may be summarized in a few sentences. The city in the years 1929 and 1930 contracted floating debts amounting to $146,757.51, evidenced by notes, judgments, and outstanding claims in tbe hands of various persons and corporations, all bearing interest at tbe rate of 6 per cent, per annum. Tbe ordinance provided for a bond ¡issue of $145,000, bearing 4% per cent, interest to fund tbe debts. Tbe reasons tbe various debts were incurred are set forth in detail, and it was alleged that all tbe debts were incurred for legitimate purposes. It was averred that tbe city failed “to levy and collect a tax sufficient to defray the costs of government and that the tax rate actually levied was not tbe maximum permitted by tbe Constitution and Charter of tbe city.” Tbe total valuations of property for tbe years 1929 and 1930 were given and' tbe levies made in each of those years for municipal purposes was $1.87 on each $100 of taxables, portions of which were for interest, sinking funds, and other special levies.

Tbe total bonded indebtedness at tbe beginning of 1931 was $1,646,490.36 and tbe limit of indebtedness fixed by tbe Constitution would not be exceeded by the proposed issue of bonds.

In Baker v. Rockcastle County, 225 Ky. 99, 7 S. W. (2d) 846; Rowland v. City of Paris, 227 Ky. 570, 13 S. W. (2d) 791; and King v. Christian County Board of Education, 229 Ky. 234, 16 S. W. (2d) 1053, it was pointed out that a petition to enjoin tbe issuance of bonds must set forth in traversable form facts showing some substantial ground for granting tbe relief sought, and, in tbe absence of a proper pleading and proof of such facts when denied, we will uphold tbe action of the circuit court in dismissing tbe action, but withhold tbe expression of an opinion respecting the validity of tbe proposed bond issue.

Plainly no facts are set forth in tbe petition in this case to warrant tbe relief sought.

Since tbe dismissal on demurrer for tbe defective statement of a cause of action, or because of tbe omission to state facts pertinent to a good cause of action, constitutes n*o bar to another suit (Robeson v. Yann, 224 Ky. 57, 5 S. W. (2d) 271; Pepper v. Donnelly, 87 Ky. 259, 8 S. W. 441, 10 Ky. Law Rep. 140; Thomas v. Bland, 91 Ky. 1, 14 S. W. 955, 12 Ky. Law Rep. 640, 11 L. R. A. 240; Coleman-Clark Grocery Co. v. Covington Bros. & Co., 186 Ky. 738, 217 S. W. 889), we are not authorized, upon this record, to determine the validity of tbe proposed bond issue. Tbe ruling of tbe circuit court, upon tbe facts presented by tbe petition and agreed statement of facts, which may be treated as an amendment to tbe petition, was clearly correct.

Tbe judgment is affirmed.

Whole court sitting.  