200 Ky. 41
Court of Appeals of Kentucky.
PAYNE v. FISCAL COURT OF CARLISLE COUNTY ET AL.
June 22, 1923.
ACTION: Affirmed.


Appeal from Circuit Court, Carlisle County.
Action by J. H. Payne, individually and on behalf of other citizens and taxpayers, against the Fiscal Court of Carlisle County and others, to enjoin the issuance of county bonds.
From a judgment dismissing the petition, plaintiff appeals.

THOMAS, J.
On the 20th day of November, 1922, the county court of Carlisle county, by an order duly and regularly entered on the order book of the court, called an election to be held throughout the county on February 10, 1923, for the purpose of taking the sense of the legal voters of the county as to whether its fiscal court might issue the county's bonds to the amount permitted by the Constitution and Statutes of the state for the purpose of building, constructing, and reconstructing public roads and bridges therein.

The election was advertised and held in strict conformity to the law, and there were cast in favor of the proposition 1,275 votes and against it 437 votes, making 838 majority in favor of the affirmative of the proposition. This action was filed by appellant and plaintiff below, J. H. Payne, a citizen and taxpayer of the county, for himself and on behalf of other citizens and taxpayers, against the fiscal court, its members and other necessary officers of the county, to enjoin the issuing of any of the bonds authorized by the election upon the grounds:
(1) That the petition did not name a day for the holding of the election;
(2) that it did not name or designate in express words or figures the total amount of the bonds to be issued; and
(3) that the petition filed with the county court requesting the election was not signed by 150 "freeholders of the county," as is required as a prerequisite to the entry of the order by section 4307 of the Kentucky Statutes, and which is necessary to confer jurisdiction on the court to make the order. The pleadings were made up and an agreed statement of facts was filed, and on final submission the trial court dismissed the petition, and plaintiff has appealed.

The regularity of the proceedings from their beginning is not called in question, and indeed could not be, since the requirements of the statute seem to have been literally followed both by the county judge in making his orders and by the sheriff in holding the election. Neither of the grounds 1 and 2 is argued in brief for plaintiff, and we might dismiss them without further consideration as having been abandoned. However, we held in the cases of Denton v. Pulaski County, 170 Ky. 33, 185 S. W. 481, and Pendleton v. Letcher County Fiscal Court, 194 Ky. 688, 240 S. W. 358, that it was unnecessary for the petition to designate a day for the holding of the election, since the statute authorizing it made no such provision, and in the latter case we also held that the petition need not expressly state the amount of bonded indebtedness to be incurred under the authority conferred by the election because the statute authorizing it contained no such requirement. Besides, it is a maxim in law that, "Id certum est quod certum reddi potest," and the petition filed with the county court in this case requested the election "for the purpose of taking the sense of the voters therein (Carlisle county) as to whether or not they are in favor of issuing bonds for the maximum sum permissible under the Constitution and laws of the state of Kentucky for the purpose of building roads and bridges in said county." Under the provisions of section 157a of the Constitution, the maximum amount of the bonds could not exceed 5 per centum of the value of the taxable property in the county, nor could it exceed a sum which an annual levy of 20 cents on the hundred dollars worth of taxable property in the county would provide a sinking fund for its final discharge and payment of the annual interest thereon. So that the amount of the bonds to be issued was a mere matter of calculation, and under the maxim supra the petition must be regarded as sufficient on that point, even though the question had not heretofore been determined in the Pendleton Case supra. We therefore regard grounds 1 and 2 as without merit.

Ground 3 presents a more serious question. The term "freeholder" means, of course, one who is the owner of a freehold estate, but the difficulty arises when we come to define under modern decisions with exactness what constitutes that character of estate, since it will at once be admitted that the intention of the Legislature in employing the term "freeholder" in the statute is the fact which should guide and govern us in construing it. All the authorities, both ancient and modern, agree that a freehold estate is an interest as much as, or more than, a life estate in land either for the life of the holder or pur autre vie, and it is an estate of inheritance or one not of inheritance, all of which are, of course, estates transmissible by inheritance except life estates. It is not necessary that the fee be an absolute one, since it will be sufficient if it is a defeasible or even a base one, and under the common law the fact that it was a fee tail (which our statute converts into a fee simple) did not destroy its freehold character. None of the cited authorities referred to and no other found by us gives a more extended or circumscribed definition of the term; but Mr. Blackstone in the reference made to his Commentaries states that "an estate of freehold, liberum tenementum, or frank tenement, is defined by Britton to be 'the possession of the soil by a freeman,' " which, of course, means that the possession must be held under the requisite character of title, i. e., an estate for life or one of inheritance. Further along in the text the learned author says:

"Such estate, therefore, and no other as requires actual possession of the land, is, legally speaking, freehold; which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture."

He concludes by extracting from the ancient writers his own definition of a "freehold estate," and says "that it is such an estate in lands as is conveyed by livery of seisin."

The only other authority touching the requirement of actual possession or the right of possession by the holder of the land to create him a freeholder that we have found is the case of In re Borough of Mountville, 31 Pa. Super. Ct. 18, the opinion in which says that the holder of a vested remainder in real estate, who of course has no right to immediate possession, is not a freeholder, since his estate is not a freehold. However in the text in Corpus Juris, supra, and that of the other authorities, it is shown that a gradual tendency to depart from the strict common-law requirement of possession has been manifested by the courts, and in speaking of freehold estates the text says: "Its meaning may depend upon express statutory provisions or it may be used in a statute in the same sense as at common law."

And after stating that under that law no freehold estate could be created to commence in the future, it is added, "but in some jurisdictions the rule is now otherwise." So that if we should apply the strict common-law meaning of the term, no one holding any titled interest in land could be classed as a freeholder without the right to immediate possession.

In this case it is stipulated that the petition calling for the election contained the signatures of 200 legal voters and residents of Carlisle county, and that 147 of them were freeholders, and that 47 of them were not freeholders. One of the others, it was agreed, owned an undivided interest in a farm in the county inherited from his deceased father upon which the petitioner resided and that his mother resided with him. There is nothing to show that the mother or any one else owned or held any preceding particular estate in the land, nor is any fact shown militating against the right of the petitioner to possession as a joint owner.

As to another petitioner, it is stipulated that he owns a one-fifth undivided interest in a house and lot in Bardwell and the same interest in a farm owned by his deceased father; that the petitioner resides in the house in Bardwell with his mother and that she has a dower interest in it, but nothing is said about any interest, if any, she has in the farm. As to two other petitioners it is agreed that they own an undivided interest in described real estate which was inherited by them from their deceased father and in which their mother, who resides with them, is entitled to dower; but, whether there has ever been any assignment of dower to the widows in those two cases so as to cover the entire property, or whether it remains unassigned, and therefore entitling her to occupy only the mansion house and curtilage until assignment, does not appear. If the latter is the fact, then her estate is not a freehold one, since "prior to the assignment of her dower the widow has no vested freehold estate under the common law. She is not seized of any part of her husband's land, but her right is for most purposes nothing more than a mere right of action." And some courts hold that until assignment of dower the widow is only a tenant in common with her husband's heirs.

The voting of the bonds is in furtherance of a public purpose and considerable expense has been incurred in providing for and holding the election. The majority in favor of the proposition, as shown by the returns, indicates a strong sentiment in favor of the improvements, and we think it is the duty of the courts to uphold the election unless clear grounds for invalidating it are shown. Were we to apply in this case the strict circumscribing requisites of the common law with reference to the technical meaning of freehold estates, as defined by Blackstone, at least the last two of the above referred to petitioners would not be freeholders, if their mothers' interest extended to the entire real property in which they own an undivided remainder interest jointly with their coheirs. But in order to so hold it would devolve upon us to assume that their mothers' dower interest had not only been assigned, but that it extended over the entire property in which the joint interest of the petitioners was held. A proper construction of the stipulation does not justify that assumption, but, on the contrary, authorizes the conclusion that either no dower had been assigned in those two cases, or, if so, that it extended to and covered only a portion of the jointly inherited property, which as to some of the contested petitioners appear to be separate parcels. That being true, it appears that the petition was signed by at least 151 freeholders of the county, as coming strictly within Mr. Blackstone's definition of that term.

However, this court in the Pendleton Case, supra, had before it the sufficiency of a petition for the same character of election and wherein it was recited that the petitioners were "citizens, landowners, legal voters and taxpayers" of the county. It was objected by plaintiff therein that there was no showing that the petitioners were "freeholders," as required by the statute; but in answering that contention the opinion said:

"This designation of the petitioners is manifestly a compliance with the statute since they are shown not only to be freeholders but also legal voters and taxpayers of the county"--which was tantamount to saying that a "landowner" in the county was a "freeholder" in the sense that the Legislature employed the term in the statute.

But for the reasons hereinbefore stated it is not necessary to, and we do not now, determine that question.

Having reached the conclusion that the petition in this case was signed by the requisite number of qualified petitioners, and that the other objections to issuing the bonds are without merit, it results that the judgment was proper, and it is affirmed.

Ky.App. 1923.
PAYNE v. FISCAL COURT OF CARLISLE COUNTY ET AL.
252 S.W. 127, 200 Ky. 41


     

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