Woolley v. Louisville Southern Railroad

JUDGE BENNETT delivered tiie opinion-of the court. The appellants, as citizens and tax-payers of the city of Lexington, Ky., seek, by petition in equity, to have the election and subscription of one hundred thousand dollars in city bonds by said city to the appellee, declared void. The General ■ Assembly of the State of Kentucky, by an Act approved May the 3d, 1888, authorized the city of Lexington to subscribe as much as one hundred thousand dollars to the capital stock of the appellee, to be used in the construction of its road from Lexington to the town of Lawrenceburg, Ky. As a precedent condition to the right of the city of Lexington to make said subscription, the Act provided, among other things, that the mayor and general council of the city of Lexington shall, by order, submit the question of subscription to a vote of the legal voters of said city, at an election, etc.; and if a majority of the votes cast at said election shall [227] be in favor of the proposed subscription, then it shall be made, etc. The mayor and general council of said city did, by order, submit the question to the “legal voters” of said city, whether or not one hundred thousand dollars should be subscribed to the capital stock of the appellee, which, in the opinion of the proper city authorities, resulted in favor of the subscription and in the issual of the city bonds to the appellee. It is not contended by the appellants that the order of the mayor and city council, submitting the question of subscription to the “ legal voters of the city,” was in any particular irregular or void; but it is that the mayor of the city, on the morning of the day of the election and before the hour of voting had arrived, issued a circular to the officers of the election, which they received and by which they were governed, informing them that no payment of poll-tax was required of the voters at the election to be held that day in order to entitle them to vtite at the election, if they were otherwise qualified, under the general State law, to vote; that as the law required the payment of a poll-tax and a registration by. each citizen, in order to entitle him to jrote at city elections ; and as all citizens of the city, without regard to their having paid their poll-tax, and who were entitled to vote at a State election, were allowed to vote at said election, the election was void and conferred no power upon the city to issue bonds to the appellee. It appears that three thousand one hundred and eighty-five votes were cast at said election, and only two thousand three hundred and seven of which were legal votes. The appellants claim that, receiving the illegal votes by the officers of the election upon the authority of the [228] mayor, vitiated the election upon the ground that the submission was not legal, therefore the election was void. It is conceded that the submission to legal voters, in all cases, is a condition precedent to a valid election; but the receiving of illegal votes by the officers of the election, who have no authority to order an election, is wholly a different question. Eor if the election has been legally ordered, the condition precedent to a valid election has been complied with; and if the officers of the election violate the law in receiving illegal votes, and such illegal votes can be eliminated and the true result of the legal votes ascertained, the election is not invalid, but it will be upheld. Upon that subject Mr. Dillon on Municipal Corporations, section 138, and McCrary on Elections, section 444, correctly, as we think, lay down the proper rule. The former says: “ Receiving illegal or improper votes will not alone vitiate an election. It must be shown affirmatively, in order to overturn the declared result, that the wrongful action changed it.” The latter says: “It is not a valid objection to an election that illegal votes were received, if they did not change the result. If, therefore, a number of legal voters withdraw from an election, and decline to vote upon the ground that illegal votes are being received, they do so at their peril and take the chance of being able afterwards to show that such illegal votes were large enough to change the result.” He also says, section 305: “ It is impossible to define exactly the degree of irregularity and illegality in the conduct of an election which will render it void; but perhaps the best rule upon the subject is this: If the voice of the electors can be made to appear from the returns, either [229] alone or aided by extrinsic evidence, with reasonable clearness and certainty, then the election should stand, but'not otherwise. This rule has made necessary another, viz: That if it appear that illegal votes have been admitted, it is the first duty of the tribunal trying the contest to purge the poll of such illegal votes, if there is evidence upon which this can be done, and effect should be given to the majority of. the good voters.” Now, the circular of the mayor to the officers of the election was not a part of the submission of the question to the voters of the city. He had no legal authority to issue the circular; his advice to- the officers was not binding upon.them; it amounted to no more than the advice of any citizen upon the subject. The action of the officers in receiving illegal votes was not based upon the submission of the question, but upon the advice of a person that had no authority upon that subject. The submission was, therefore, legal. Nor does it appear from the petition that the majority of the votes cast were illegal votes. On the contrary, it appears from the petition that not half of the votes cast at the election were illegal votes; nor does it appear from the petition that a majority of the legal votes- cast was not for the subscription. It is clear that it could have been ascertained, with judicial certainty, how many legal votes were cast for and against this subscription, and the appellants’ silence upon that subject creates the presumption that the subscription obtained a majority of the legal votes, and the declared result was in accordance with that vote. It is also alleged that the appellee “ did, by the payment of money, and by the use of corrupt and illegal means, entice, persuade, influence and bribe a large, number of [230] voters — both those who were, and those who were not at the time, legal voters of the city of Lexington — to vote in favor of such subscription.” * * * That the majority of the voters, who voted at said election in favor of the subscription, were not unbribed.” The expression “ a large number of voters,” means any number that the draftsman may have upon his mind, viz: five, ten, a hundred, etc.; but it does not mean that a majority of the legal votes cast for the subscription were bribed to vote for it. Also, the expression that the majority of those voting in favor of the subscription “ were not unbi’ibed,” is not equivalent to an allegation that a majority of those voting in favor of the subscription were bribed. The allegation is only, at most, an implied or indirect charge; it is not equivalent to direct charge of bribery, made in plain and concise language, as the Civil Code requires. The judgment sustaining the demurrer to the petition is affirmed.