#### Young v. Roberts, et al.

(Decided May 5, 1911.)

Appeal from Henry Circuit Court.

1. Elections — Illegal Votes' — The receiving of 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 act changed it.

*5122. iSame — Action of School Trustees — In the absence .of an averment of fraud or oppression in a,n election sufficient to authorize an injunction, the action of the- -school trustees fixing the amount of money required to be raised for .school- purposes- is conclusive'.

TURNER. & TURNER for appellant.

R. D. J-AlCIKiSO'N’ for appellees.

Opinion op the Couet by

Judge Milleb

Affirming.

Appellant, Young, a resident and taxpayer of tlie Bethlehem Graded White Common. School District No. 24, in Henry County, instituted this suit against the trustees for said district to enjoin them from issuing bonds to the amount of $2,000 for the purpose of providing suitable grounds, school building, furniture and apparatus for the conducting of a good graded common school in said district. The election was called by the trustees, and held in every respect as required by section 4481 of the Kentucky Statutes.

It was conducted by two judges, a clerk and a sheriff on February 25, 1911, and resulted in 102 votes having been cast in favor of the issuing of the bonds, and 13 votes in opposition thereto.

The injunction is asked upon two grounds only: first, because five persons who were not qualified or legal voters, and who did not live in the boundary of the district, were permitted to vote at the election, four of them having voted against the issua.1 of the bonds, and one in favor thereof; and, second, because there is now erected on. the school grounds a suitable building for the accommodation of the children in the district, and, as plaintiff is informed, said building has been paid for by private donations, except the sum of $900, which is still owing, and it will not require- as much as- $2,000 to complete the payment for the building.

The lower court sustained a demurrer to the petition; and the plaintiff having declined to plead further, the petition was dismissed and plaintiff appeals.

We are of opinion that the demurrer was properly sustained. Conceding that five illegal votes were cast, it must, nevertheless, be admitted that the result of the election was not in any way affected, thereby. The receiving of illegal votes will not alone vitiate an election; it mnst be shown affirmatively, in order to overturn the *513declared result, that the wrongful act changed it. McCrary on Elections,. Sec. 444; Wooley v. Louisville Southern R. R. Co., 93 Ky., 223.

The second objection rests upon no firmer ground than the first; for, in the absence of an averment of fraud or oppression sufficient to authorize an injunction, the ratified action of the trustees in fixing the amount of money required to be raised is conclusive. The averment of the pleader in this, case is merely the expression of a difference of opinion. Cromwell v. Trustees, et al., 14 Ky. Law Rep., 173. Furthermore, the allegation of the petition that only $900 is necessary, is confined to the payment for the buildings, while the vote was taken upon the question of issuing bonds to the amount of $2,000 for the purpose of providing grounds, a building, furniture and apparatus for the conducting of the school. It may be true that while only $900 is needed to finish paying for the building, it may nevertheless be trae that $2,000 is needed for the other purposes mem tioned in the call for the election.

The necessary and proper, steps having been taken, we are of opinion that the bonds to the extent of $2,000 can be legally issued, and that the circuit court properly so held.

Judgment affirmed.