(222 S.W.) tition asking for the establishment of a lier than forty days from the date of said orgraded common school district, but that more than 25 per centum of the legal voters and taxpayers, within the boundary of the proposed graded common school district, subscribed the petition asking for the establishment of the district. der, for the purpose of taking the sense of the legal white voters in said proposed graded common school district upon the proposition whether or not they will vote an annual tax, in any sum named in said order, not exceeding fifty cents on each one hundred dollars of property assessed in said proposed graded common school district, town or city belonging to said white voters or corporations, or a poll tax in any sum named in said order not exceeding one dollar and fifty cents per capita on each white male inhabitant over twentyone years of age residing in said proposed graded common school district, or both an ad valorem and a poll tax, if so stated in the or der, for the purpose of maintaining a graded common school in said proposed graded common school district, and for erecting, purchasing or repairing suitable buildings therefor if necessary." A proviso in the section is to the following effect: "Provided, that the proposition to establish any graded common school, as provided for in this section, that no point on the boundary of any proposed graded common school district be more than two and one-half miles from the site of the school building," etc. Upon the record made the cause was submitted, and the court adjudged that the plaintiffs, who were voters and taxpayers within the proposed graded common school district, had failed to manifest any right to the relief sought, and dismissed the petition, and furthermore adjudged that the bonds proposed to be issued were valid obligations of the district, and that in the levying and collection of the taxes the trustees in the district were within their authority. The plaintiffs have appealed from that judgment, and insist that the judgment of the circuit court was erroneous, in that the county court, when it made the order fixing the boundary of the district and ordered the sheriff to hold an election as provided by section 4464, supra, was without jurisdiction to do so, and hence that all the proceedings thereafter were invalid. The jurisdiction exercised by the county court is assailed upon three grounds: (1) The petition, upon which the board of education and It must necessarily be conceded that the the county superintendent of schools indors- county court is without authority to fix the ed their approval, was subscribed by only boundaries of a proposed graded common three petitioners, which was admittedly an school district, or order an election held insufficient number to give the court juris- therein, as provided, in the statute, supra, diction of the subject-matter; (2) the coun- until the county judge shall have received a ty board of education did not indorse its petition signed by the number of persons approval of the establishment of the district and with the qualifications required. The and its boundaries upon the petition in writ-qualifications prescribed for the persons who ing; (3) the petition upon which the court acted was not subscribed by 25 per centum of the legal voters who were taxpayers in the justice's district within the boundaries of which the graded common school district was proposed to be established. [1-5] (a) The determination of the merits of the third ground upon which the jurisdiction of the county court is denied depends upon the construction to be placed and the interpretation made of section 4464, supra. The section in part reads as follows: "It shall be the duty of the county judge in each county of this commonwealth, upon a written petition signed by at least twenty-five per cent. of legal voters who are taxpayers in the justice's district, town or city of the fifth or sixth class in his county to make an order on his order book, at the next regular term of his court after he receives said petition, fixing the boundary of any proposed graded common school district, as agreed on by the county judge and the petitioners, and directing the sheriff or other officers, whose duty it may be to hold the election, to open a poll in said proposed graded common school district, at the next regular state, town or city election to be held therein, or on any other day fixed by said judge in said order, not in either case ear sign the petition are that they must be legal voters, and also taxpayers, in a justice's district, or in a town or city of the fifth or sixth class, in the county. The number of the signers must be "twenty-five per cent. of the legal voters, who are taxpayers," etc., and the point about which the contention here arises is whether they must constitute 25 per centum of the legal voters who are taxpayers in the proposed graded common school district, or whether they must be 25 per cent. of all the legal voters who are taxpayers in the justice's district, or town, in which the district is proposed to be established. If the statute requires the signers of the petition to amount in number to 25 per centum of the legal voters who are taxpayers in the proposed district, it is conceded that the petition in the instant case was amply sufficient. If it requires the signatures of 25 per centum of the legal voters who are taxpayers in the town of Albany, or in the magisterial district, within the boundaries of which the proposed district is situated, the petition was not sufficiently signed, and the county court was without jurisdiction to order the election, or to do anything, except to deny the application. To interpret the statute, it must be ascertained and determined what the Legislature meant and intended, touching the requirement in issue, as the intention of the Legislature is what statute law is. Com. v. International Harvester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256; Maysville, etc., R. R. Co. v. Herrick, 13 Bush, 122; Bailey v. Com., 11 Bush, 688. Of course, if the language of a statute is plain and unambiguous, and only one meaning can be fairly deduced from it, there is nothing for the courts to do but to give it such meaning, and there is no room for any judicial construction. Gains v. Gains, 2 A. K. Marsh, 190, 12 Am. Dec. 375; Adams Express Co. v. Ky., 238 U. S. 190, 35 Sup. Ct. 824, 59 L. Ed. 1267, L. R. A. 1916C, 273, Ann. Cas. 1915D, 1167; Deposit Bank v. Daveiss County, 102 Ky. 174, 39 S. W. 1030, 19 Ky. Law Rep. 248, 44 L. R. A. 825. If, however, there is ambiguity and uncertainty of the legislative meaning from the literal meaning of the language or other reason, the legislative intendment may be ascertained from a consideration of all the provisions of the act together, as well as the objects intended to be accomplished by it, the occasion of its enactment, other existing legislation upon the same subject at the time of the enactment, the legislative policy and previous legislation upon the subject, and the result, if a construction contended for is upheld; and from all these sources, if necessary, the true legislative intention may be gathered, and any construction which is contrary to the obvious intention of the Legislature, or which will lead to an absurdity, rejected. A well-known rule of construction of an ambiguous statute is that when the intention of the Legislature is obvious, but the language used, if given its literal meaning, will defeat the intention, the real purpose of the Legislature should be allowed to prevail over the literal import of the words. Brown v. Thompson, 14 Bush, 538, 29 Am. Rep. 416; Lanferman v. Vanzile, 150 Ky. 751, 150 S. W. 1008, Ann. Cas. 1914D, 563, Hence the courts have often substituted the word "and" for "or," and "or" for "of," and have disregarded words when the context showed that the use of the word employed was a manifest error or inadvertence. article "a" for the article "the," it at once becomes apparent that the intention of the makers of the statute in the use of the words "legal voters, who are taxpayers in a justice's district, town or city of the fifth or sixth class, in his county," was not to prescribe a unit beyond the boundaries of which a proposed graded common school district should not go, or that the voters in such a unit should control the establishment of such a district, but the purpose was to prescribe a qualification for the petitioners; that is, in addition to being a legal voter and a taxpayer, he must reside in a justice's district, or in a town of the fifth or sixth class. This construction is fortified by the fact that at the legislative session of 1916, when section 4464, supra, was amended, and re-enacted, in its present form, section 4468a3 was also enacted, and which provides a method different from that provided by section 4464, supra, for the establishment of graded common schools in cities of the first, second, third, and fourth classes. The language above quoted from section 4464, supra, has been in such statute in its present form since its amendment in 1914, and both before and since that time its provisions by reason of other existing legislation have not applied to cities of the first, second, third, and fourth classes. Bailey v. Gigely, 106 Ky. 725, 51 S. W. 424, 21 Ky. Law Rep. 341; Trustees v. Stone, 142 Ky. 715, 135 S. W. 307; Read v. Smith, 106 S. W. 1182, 32 Ky. Law Rep. 16. The only voters and taxpayers, except those residing in cities of the first four classes, are those who reside in justice's districts, in the county, and in cities of the fifth and sixth classes, and, this statute not applying to citizens of cities of the first four classes, it was necessary to refer to the ones to whom the latter statute applied, in that statute, as persons who were legal voters and taxpayers, and therefore residents in a justice's district, or in a town of the fifth or sixth class. A reference to other provisions of section 4464, supra, shows indisputably that it was not the intention of the statute that the boundaries of a graded common school district should be confined within the limits of any one justice's district, or a town of the fifth or sixth class, exclusive of territory in a justice dis It will be observed that the language of the statute in question is "upon a written peti-trict, since the limits provided for by the tion signed by at least twenty-five per cent. of the legal voters who are taxpayers in the justice's district, town or city of the fifth or sixth class in his county," etc. This language, if allowed its literal signification, would imply that the Legislature was under the impression that only one justice's district, or only one town of the fifth or sixth class, was in a county, and it is manifest at once that the article "the" preceding the words "justice's district" was inadvertently used for the article "a." Substituting the act for such a school district was not the boundary line of a magisterial district, but it might extend to the distance of 21⁄2 miles from the site of the school building proposed for the district. The boundaries of the graded common school district is a subject of agreement between the county judge and the petitioners, with the approval of the board of education and the county superintendent of schools. There is no provision of the statutes which limits a graded common school district to the boundaries of a magis (222 S.W.) district in a portion of the magisterial district wherein no one of the signers resided or was a taxpayer, and all the voters and taxpayers within the proposed school district be opposed to it. Applying to the words "twenty-five per cent. of the legal voters, who are taxpayers in the justice's district," etc., without reference to other provisions of the statute, their literal import would make it necessary to give the county court jurisdiction of the subject, to include in the computation to be made to determine when 25 per centum of the legal voters and taxpayers had signed the petition, the persons of color, as well as the white voters, which, in the view of all the legislation touching schools, no one would suppose that the Legislature contemplated. In view of the foregoing it seems very clear that the Legislature intended by the statute that to give the county court jurisdiction of the subject a petition signed by 25 per centum of the legal white voters who are taxpayers within the boundary of the proposed graded common school district only was necessary, where a white graded common school is desired, as in the present instance. terial district, or of a town of the fifth or to be held for the establishment of a school sixth class, and the uniform construction which has been given to section 4464, supra, by the officers and patrons of such schools, and in a number of cases assumed by this court, has been that a graded common school district may be established which includes towns of the fifth or sixth classes, and also adjoining territory, in one or more magisterial districts beyond the limits of the town. When the election is held to determine whether the proposed district shall be established, the only persons permitted to vote at such election are, if a white district, not the voters, within the justice's district or town, in which the proposed school district, or a part of it is situated, but the legal white voters residing within the boundaries of the proposed district. After the establishment of the school district, it is only the residents of it who are required to bear the taxation necessary to maintain its buildings and school, and to control the district. Hence we conclude that it is 25 per centum of the legal voters who are taxpayers within the boundaries of the proposed graded common school district only who must be signers of the petition, to give the county court jurisdiction of the matter. A different conclusion as to the persons necessary to be signers of the petition would lead to the following results: If the number of voters in a justice's district, or a town of the fifth or sixth class, were held to be units by which to determine, when a sufficient number of signers was secured to give the county court jurisdiction, the applicants would have to first elect where a town of the fifth or sixth class was situated, whether the proposed school district should be in the town, or should include territory outside of it, and if the town was selected as the unit, then to secure the signatures of 25 per centum of the voters and taxpayers of the town would be necessary to the petition whether they were all included in the proposed school district or not. If the justice's district was selected as the unit, then it would take 25 per centum of the voters and taxpayers within the magisterial district, although 75 per centum of them might reside without the limits of the proposed school district, and if the latter included portions of several magisterial districts, as it might, then it would require the signatures of 25 per centum of the voters and taxpayers of each of the magisterial districts to give the court jurisdiction, although a very small per centum of all would be in the proposed school district, or would be permitted to vote on the question of its establishment, or would ever have any interest in or control of it. Twenty-five per centum of the voters and taxpayers in a magisterial district could, under such a construction of the statute, require an election [6] The other two contentions of appellants will be considered together. Four petitions, which were exact copies of each other, were circulated, and more than 25 per centum of the legal white voters who were taxpayers, and who resided within the proposed school district signed one or the other of the petitions, but neither of the petitions alone had a sufficient number of signers. These petitions were treated as one petition, and were together presented to the board of education for its indorsement, and to the county judge. The statute requires that 25 per centum of the legal voters who are taxpayers within the proposed school district must petition for its establishment before the costs and trouble of an election are resorted to, and the names of the petitioners upon whose request the county court bases its actions must appear that the people of the proposed district may determine whether they are legal voters and taxpayers within the district, and two or more petitions identical in terms, and together signed by the requisite number, satisfies the requirements of the statute. Under the local option law, which required a petition subscribed by 25 per centum of the voters in a district to be affected to be presented to the county judge, requesting the holding of an election upon the subject of the sale of spirituous liquors, in order to authorize the county judge to order the election to be held, it was held that two or more petitions, which together were subscribed by the requisite number of persons, satisfied the requirements of the statute. The same reasons would satisfy the statute, in ordering an election for the establishment of a graded common school | proval that is required in order that it may district. Sith v. Patton, 103 Ky. 444, 45 S. W. 459, 20 Ky. Law Rep. 165; Tousey v. De Huy, 62 S. W. 1118, 23 Ky. Law Rep. 458. [7] The statute requires the petition to be approved in writing by the county board of education and the county superintendent of schools before the county judge is authorized to act upon it. That such approval must exist to give the county court jurisdiction there is no doubt. Under a former statute, when the approval of a school trustee whose district was affected by the proposed creation of a graded common school district was necessary, it was held that the failure of the applicants to secure such approval was fatal to the proceedings, and the same has been held with reference to the approval of the county board of education under the present statute. Kattawa Common School District v. Trustee, etc., 99 S. W. 905, 30 Ky. Law Rep. 839; Mullins v. Andrews, 45 S. W. 231, 20 Ky. Law Rep. 20; Conrad v. Poole, 184 Ky. 348, 211 S. W. 874. maintain a proper control over the schools and educational interests of the county. In such case a substantial compliance with the statute satisfies it. In De Haven v. Hardinsburg, etc., 164 Ky. 515, 175 S. W. 991, which involved the sufficiency of an indorsement of approval by a school trustee of the petition for the creation of a graded common school district, this court said: "We are not disposed to hold that the same formalities should attend the approval of such a petition as are held to be necessary in the execution of ordinary legal documents." The members of the board of education in the instant case, acting as the board, at a meeting held for the purpose, indorsed its approval in writing upon one of the petitions, therein referring to the other as copies of it, and extending its approval to all, and then each member of the board signed the writing. The superintendent of schools also indorsed his approval at the same time, and thus the written approval was subscribed by not only the chairman and secretary, but each member, of the board, though the signatures of the chairman and secre [8-10] In the instant case, the board of education at a meeting held for the purpose adopted a resolution approving the creation of the proposed graded common school and the boundaries of it, which was duly enter-tary did not purport to be subscribed as ed upon its records, and was subscribed by its chairman and secretary, but at the same time the approval, which it placed in writing upon the petition, was written upon one of the petitions only, and was signed by each of the members of the board with his name, followed by a statement that he was a member by reason of being the chairman of a designated educational division. It is insisted that, the board of education being a corporation, it could act only as such, and that the approval indorsed upon the petition was not the act of the board, but the separate act of each of its individual members, and that the approval should have been subscribed by the board by its chairman and attested by its secretary. True the board is a corporation, and so declared by statute, as the trustees of a school district are a corporation, and must act as such, or else its acts are ineffectual. The board to act must have present a quorum of its members, and all must have had notice or opportunity to be present. Shore v. Langston, 125 Ky. 816, 102 S. W. 236, 31 Ky. Law Rep. 388; Scott v. Pendley, 114 Ky. 606, 71 S. W. 647, 24 Ky. Law Rep. 1431; Shepherd v. Gambill, 75 S. W. 223, 25 Ky. Law Rep. 333; Creech v. Trustees, 102 S. W. 804, 31 Ky. Law Rep. 379. A distinction must, however, be drawn between the manner required of the board when transacting its business touching contracts and performing its fiscal duties and such an act as approving the creation of a graded common school district. In the latter instance it is only its intellectual ap such, but as members of the board, which they were. This was a compliance with the statute, for all the purposes for which the approval of the board of education is required. The judgment is therefore affirmed. JOHNSON v. COMMONWEALTH. (Court of Appeals of Kentucky. June 4, 1920.) 1. Criminal law 938(1)—New trial will be granted for material new evidence probably affecting result. While courts are somewhat reluctant to grant a new trial for newly discovered evidence, they will grant a new trial for such evidence if its materiality and probable effect are such that a manifest injustice would be committed to disallow the new trial. 2. Criminal law 938(1)-Cumulative evidence which probably would change verdict requires new trial. While a new trial will not be granted as a general rule to accused for newly discovered evidence which is cumulative only, it will be granted where the evidence, though somewhat cumulative, is of so controlling a character that it would possibly change the verdict. 3. Homicide 319-Newly discovered evidence which would reduce degree of homicide requires new trial. Where the newly discovered evidence, though insufficient to establish a possibility that accused would be acquitted on a new trial, is sufficient to make it probable that a verdict for (222 S.W.) a lesser degree of homicide than murder in the first degree would be rendered, it is sufficient to require a new trial after verdict of first degree murder fixing the penalty at death. 4. Homicide 319-Newly discovered evidence cumulative to defendant's testimony held sufficient to require new trial. Where defendant was convicted of first degree murder and sentenced to death, newly discovered evidence by two witnesses that they heard the conversation to which defendant testified and in which deceased made scurrilous remarks about defendant's sister would be sufficient, if true, to reduce the offense to manslaughter and requires the granting of a new trial. with murdering Walter Rice, which occurred at about 7 p. m. on January 29, 1918, in the restaurant of A'Hern & Burton, located at the corner of Tenth and Pleasant streets in the city of Paris, Ky. Appellant entered a plea of not guilty, but upon his trial the jury convicted him and fixed his punishment at death. His motion for a new trial having been overruled, he prosecutes this appeal, relying upon three grounds for a reversal: (1) Error of the court in failing to grant him a new trial because of newly discovered material evidence which he did not and could not discover before the trial by the use of ordinary diligence; (2) misconduct of the commonwealth's attorney in his 5. Criminal law 944-Credibility of wit-closing argument to the jury; and (3) ac nesses not determined on motion for new trial for new evidence. On a motion for a new trial of a criminal prosecution for newly discovered evidence, where the affidavits of both sides as to the character of the new witnesses was about equal in volume and weight, the credibility of their testimony will not be determined in deciding the motion, but will be left for the jury at the new trial. tual bias of two of the jurors who sat in the discovered after the trial that the two jurors case, as shown by the affidavits of witnesses had formed and expressed an opinion adverse to the appellant before being accepted on the jury. A disposition of ground 1 requires a brief statement of the substantial facts as shown by the record. Appellant was about 6. Criminal law 7222-Prosecuting attor-30 years of age and unmarried, while the ney cannot charge accused with degrading offense not supported by record. It is misconduct for the prosecuting attorney in his argument to charge the accused with an independent degrading offense which is not supported by the testimony. 7. Criminal law 304(4), 7222-Court judicially knows that "bootlegger" is unlawful liquor seller, and prosecutor should not refer to defendant in such terms in absence of evidence. The Court of Appeals may take judicial notice that the term "bootlegger" refers to one engaged in the unlawful sale of intoxicating liquor, and that in some communities would cause the jury to regard the person so engaged with contempt and prejudice, so that it was prejudicial error for prosecuting attorney to state without evidence that defendant accused of murder was a bootlegger. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Bootlegger.] Appeal from Circuit Court, Bourbon County. Oscar N. Johnson was convicted of murder in the first degree and his punishment fixed at death, and he appeals. Reversed, with directions to grant a new trial. Edwin P. Morrow, of Somerset, and O. T. Hinton, of Paris, for appellant. Charles I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth. THOMAS, J. The grand jury of Bourbon county returned an indictment against the appellant, Oscar N. Johnson, charging him deceased was 36 years of age, married, and resided at Livingston, Ky. They were both employed by the railroad company, appellant as a brakeman, and the deceased as a fireman. They were and had been acquainted with each other for some 4 or 5 years. They frequently met, and there is nothing in the testimony showing that there was any ill feeling between them, or that they sustained to each other anything less than the most cordial relations. There appears to be some kind of division railroad office located at Paris, where the appellant resided, and the deceased was on the fatal day consulting with some of the railroad officers relative to being promoted from the position of fireman to that of engineer, and was in Paris on that day for that purpose. The appellant was not at work, because he was to be examined on that day for acceptance or rejection as a member of the army under the draft law. About 8 o'clock in the morning, appellant being as he says more or less disturbed over took one drink of whisky given him in a the prospects of being taken into the army, barber shop, and later in the day he bought some from a bootlegger and took several drinks of that. About 4 o'clock in the afternoon he and the deceased met at the restaurant where the homicide occurred, and according to the testimony of some five or six witnesses introduced by the commonwealth they were talking pleasantly together, and in the language of the witnesses were "going in and out frequently," wher about 7 o'clock, while the deceased was talking to a drummer and was eating some pea For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |