Wyatt v. Ryan

' Opinion oe the court by JUDGE HOBSON Reversing. On July 22, 1901, at tlie regular term of tlie Fleming county court, a petition was filed, purporting to be signed by 81 citizens and legal voters of tbe Flemingsburg precinct of Fleming county, seeking tbe submission to tbe peo [309] pie of the district the question whether the local prohibitory law in force in the county should become inoperative in that precinct. The county judge at the next term refused to order the election. Appellees then filed this action in the Fleming circuit court to obtain a mandamus against the county judge, requiring’ him to make the order. He demurred to the petition; his demurrer was overruled; he then filed an answer; the plaintiffs demurred to the answer; their demurrer was sustained; and, he declining to plead further, judgment was entered granting the mandamus as prayed, and from this judgment he appeals. The answer of the county judge, in substance, averred that when the application was made to him it was not shown that the signers to the petition were legal voters in the precinct, or that they had signed the petition, or authorized their names put to it, or that the’number of signers was equal to 25 per cent, of the votes cast in the precinct at the last preceding general election. He alleged that he heard the application, and determined it according to his judgment, and overruled the motion because the evidence did not warrant the making of the order. In the petition which was presented to the county judge it was stated that the signers were legal voters of the precinct, but the facts were not stated showing that they were entitled to vote. There was no showing in the record anywhere that the number of signers was equal to 25 per cent, of the votes cast in the precinct at the last preceding general election, and there was no showing as to the genuineness of the signatures. The statute under which the proceeding was had is as follows (Kentucky Statutes, sec. 2554): “Upon application, by written petition, signed by a number of legal voters in each precinct of the territory to be affected, equal to twenty-five per cent, of the votes cast in each of said pre [310] cinets at the last preceding general election, and when for town or city elections, the number of'votes cast at the last city or town election, it shall be the duty of the judge of the •county court in such county, at the next regular term thereof after receiving said petition, to make an order on his order book directing an election to be held in the said county, city, town, district or precinct, as the case may be, on some day named in said petition, not earlier than sixty days after said application is lodged with the judge of said court, which order shall direct the sheriff, or other officer of the said county, who may be appointed to hold said election, to open a poll at each and all of the voting places in said county, city, town, district or precinct on said date, for the purpose of taking the sense of the legal voters of said county, city, town, district or precinct who are qualified to votd at elections for county officers, upon the proposition whether or not spirituous, vinous or malt' liquors shall be sold, bartered or loaned therein, or whether or not any prohibition law in force in any county, city, town, district or precinct, by virtue of any general or special act or acts, shall become inoperative; and counties, cities, towns, districts and precincts in which the sale, barter or loan of spirituous, vinous or malt liquors are now prohibited may have a vote thereon under the provisions of this act.” It is insisted for appellees that it was the duty of the county judge to make the order when the petition was presented, and if it turned out that the signers were not legal voters, in number equal to 25 per cent, of the votes cast in the precinct at the last general election, the election would be void, and that this would be ground for setting it aside, but was no ground for the county judge’s refusing to make the order. We do not think the statute means this. The election can not be held without the order of the county judge. The purpose [311] Is not tó bare the question submitted unless qualified voters, equal in number to 25 per cent, of the legal votes at the last general election, desire it; and it was not contemplated that there should be the expense and trouble of an election before the jurisdictional facts warranting the county judge in making the order were made to appear to him. It is a special proceeding, and the jurisdictional facts should have been established before the county judge would have 'been warranted in making the order. It was not necessary that the petition should show that the signers to the petition were in fact, legal voters, — that is, the facts as to their residence in the county or precinct need not be shown in the petition; and it was not necessary for the petition to show that the signers were equal in number to 25 per cent, of the votes cast in the precinct at the last preceding general election, biit these facts should have been made to appear before the county judge on the hearing of the motion, and the genuineness of their signatures should also have been shown. Until this was done, lie was not authorized to make the order, and the mandamus against him was therefore improperly awarded. Blair v. McCann 23 R., 1226, (64 S. W., 984). Judgment reversed, and cause remanded, with directions to overrule the demurrer to the answer, and for further proceedings consistent herewith.