Case 74. — ACTION BY BOARD' O'F EDUCATION OF WINCHESTER AGAINST THE CITY OF WINCHESTER TO TEST THE VALIDITY OF A VOTE OF THE CITY INCURRING AN INDEBTEDNESS FOR SCHOOL PURPOSES

May 30.

#### Board of Education of Winchester v. City of Winchester.

Appeal from Clark Circuit Court.

James M. Benton, Circuit Judge.

Judgment for defendant. Plaintiff appeals.

Reversed.

Cities — Incurring 'Indebtedness — Two-thirds- Vote — -Constitutionality — Legislative Restrictions.

1. Cities — Incurring Indebtedness — Voting Thereon — Two-thirds Voting — 'Constitutionality-—Under sec. 157 of the Constitution, providing that “no city * * * 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 voters1 thereof voting at an election held for the purpose,” where under an ordinance of a city of the fifth class the proposition was submitted to the voters of -said ¡city -to incur an indebtedness -of $15,000 -and issue bonds' therefor, for the erection of a school building therein, more than two-thirds of the voters voting on said proposition were cast in favor thereof, the ■ proposition was adopted, although the number of votes cast in favor of such proposition was not equal to two-thirds of all the votes cast at said election on other questions then voted on.

2. Same — Legislative Restriction — Where the .Constitution authorizes the incurring of -an indebtedness by a -city, county or -taxing district by the assent of twoAhirds of the voters of such city, -county or taxing district, voting thereon, -the legis■lature can not add to such constitutional restriction, and the case of Belknap v. Louisville, 99 Ky., 474, in -so far as it holds otherwise, is overruled.

J. M. STEVENSON for-appellant.

*592PROPOSITION'S AND AUTHORITIES.

1. 'The word “election” as used in sub-sec. 34 of sec. 3490 of the Ky. Stats., refers only to the separate and distinct vote on the proposition of incurring an indebtedness, and not to the general November election.

2. The duties of the canvassing board are ministerial, and such board can ascertain the result -of the “election” only “upon a canvass of the returns of such election.” (Ky. Stats., sec. 3490, sub-sec. 34; Huston v. Steele, 98 Ky., 60S.)

3. A two-thirds majority of those voting on the proposition to incur an indebtedness for the purpose of building additions to the school buildings in the city of Winchester is sufficient to carry the same. (Montgomery County Fiscal Court v. Trimble, 104 Ky.', 629; County of Oas-s v. Johnson, 95 U. S., 360; St. Joseph Township v. Rogers, 16 Wall., 644; State v. Mayor of St. Louis, 37 Mo., 270; Gillispie v. Palmer, 20 Wis., 544; Walker v. Osevald, 68 Md., 146; State v. Langlie, 5 N. Dak.; 594; State v. Barnes, 3 N. Dak., 319; State v. Grace, 20 Oregon, 154; Bott v. Wurts [N. J.], 40 Atl. Rep., 740; De Soto Parish v. Williams, 49 Da Ann., 422.)

PENDLETON & BUSH for appellees.

POINTS AND AUTHORITIES.

4. Where a bonded debt is to be imposed upon a municipality, all requirements of the law mu^t be complied with, otherwise such debt i-s not a binding contract.

2. The proposition to issue bonds failed to carry, because it did not receive the votes of “two-thirds of all the qualified electors” in said city. (Belknap v. City of Louisville, &c., 99 Ky., 488; Resolution of Board of Education- of Winchester, — Ky. Law R-e-p., 3; Ordinance of City of Winchester, —- Ky. Law Rep., 5; sub-sec. 34, sec. 3490, Ky. Stats.; sec. 2854, Ky. Stats.; Montgomery County Fiscal Court v. Trimble, 104 Ky., 629; Louisville Ordinance [cited in Belknap case.].)

3. Sec. 157 of the Constitution is not self-operative. It is-restrictive, -and -as -the right to submit a bond issue to a vote may be denied in the absence of direct authority from the Legislature to submit, the -act -authorizing a submission to a vote, and -the ordinance passed pursuant thereto, may provide -additional restrictions. (Belknap v. City o-f Louisville, 99 Ky., 488; Montgomery County Fiscal Court v. Trimble, 104 Ky., 639.)

Opinion bt

Chief Justice Hobson

Reversing.

*593The hoard of education of the city of Winchester, Ky., having by resolution requested the mayor and board of council of the city to incur a debt not exceeding $15,000 for the purpose of erecting and equipping additions to the existing school buildings, and to issue bonds therefor, the council adopted an ordinance submitting the question of incurring the debt to the people at the next regular election, which was held on November 8, 1904. At that election 633 votes were cast in favor of incurring the indebtedness, and 300 were cast against the proposition. The highest number of votes cast in the election was 1,421. It will be thus seen that more than two-thirds of the votes cast on the proposition were in favor' of it, but that not two-thirds of the electors voting at the election voted for it.

Sec. 157 of the Constitution in part provides: “No county, city, town, taxing district, or other municipality 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 the purpose; and any indebtedness contracted in violation of this section shall be void.”

In Belknap v. Louisville, 99 Ky., 474, 18 Ky. Law Rep., 313, 36 S. W., 1118, 34 L. R. A., 256, 59 Am. St. Rep., 478, it was held — construing this provision of the Constitution — that the assent of tw'o-thirds of the voters actually voting at the general election when the question is submitted is necessary to carry it, and not merely two-thirds of those who vote upon the question. But in Montgomery County Fiscal Court v. Trimble, 104 Ky.,629, 20 Ky. Law Rep., 827, 47 S. W., 773, 42 L. R. A., 738, this case was overruled, and it was held *594that the assent of two-thirds of the electors voting on the subject is sufficient to carry the proposition, 'without regard to the. number of votes cast for other purposes at the election. In the Belknap case it was also held that additional restrictions might be imposed, and that, aside from sec. 157 of the Constitution, the statute under which the question was submitted might require the assent of more than two-thirds of the electors voting at the election, and not merely of those voting on the question. In that case it was further held that the statute then before the court required the assent of more than two-thirds of all the electors voting at the election. This part of the opinion was not overruled in the Trimble case, as the statute there only required the assent of more than two-thirds of those voting on the subject. It is insisted for the appellee that the statute and ordinance under which the vote here in contest was taken are substantially the same as in the Belknap case, and that, therefore, the rule there announced applies. The circuit court so held, and the board of education appeals.

Every provision of the Constitution is mandatory. When it is provided that indebtedness to a certain amount shall not be incurred without the assent of two-thirds of the electors voting at an election to be held for that purpose, it necessarily follows from the constitutional provision that such an indebtedness may be incurred with the assent of two-thirds of the voters. The Legislature can neither subtract from nor add to- the constitutional requirement. The constitutional provision regulates the subject, and removes it entirely from legislative control.

In Cooley on Constitutional Limitations, side page 64, it is said: “Another-rule of construction is that, when the Constitution defines the circumstances under which a right may be exercised or a penalty im*595posed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. On this ground it has been held by the Supreme Court of Maryland that, where the Constitution defines the qualifications of an officer, it is not in the power of the Legislature to change or superadd to them, unless the power to do so is expressly or by necessary implication conferred by . the Constitution itself. Other cases recognizing the same principle are referred to in the note. ’ ’

Again, on side page 79, it'is said: “We are not, therefore, to expect to find in a Constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which for a time, at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the timies or modes of proceeding in which a powier should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end — especially when, as has already been said, it is but fair to presume that the people in their Constitution have expressed! themselves in1 careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication. ’ ’ The statute relied on is sub-sec. 34 of sec. 3490, which provides that the debt mjay be created “if, upon a canvass of the votes cast at such election, it appears that two-thirds *596of all the qualified voters iu such town shall have voted in favor of incurring such indebtedness.” The usual construction of such statutes, -where no means are provided to ascertain the number of votes in the ran¡nicipality, is that it refers to the votes cast on the question. (State v. Langlie, 5 N. D., 594, 67 N. W., 958, 32 L. R. A., 723; County of Cass v. Johnston, 95 U. S., 360, 24 L. Ed., 416; St. Joseph’s Township v. Rogers, 16 Wall., 644, 21 L. Ed., 328.) The rule is, also, that a statute will, if possible, he construed to he constitutional, rather than the contrary. But however this may he, we are of opinion that the Legislature can add nothing to the constitutional restriction, and the Belknap’ case, in so for as it holds, otherwise, is overruled.

Judgment reversed and cause remanded for further proceedings consistent herewith.