(222 S.W.) named "diseases" or "symptoms"? and it | And under this statute it has been frequently written that false answers in an application will not avoid the policy contract, unless they are material or fraudulent. Giving to this statute its fair meaning and the construction that has been consistently applied, there seems, in the light of the evidence, no escape from the conclusion that the answers of Thomas, in his application, were material and false. It is further argued that the evidence shows-and it does-that indigestion is a common ailment, and one that a large ma- Counsel for Mrs. Thomas rely on the cases jority of people are subject to; that it is of U. S. Casualty Co. v. Campbell, 148 Ky. not regarded as a disease by people gener- 554, 146 S. W. 1121, Columbia Life Insurally, but merely as a disordered condition ance Co. v. Tousey, 152 Ky. 447, 153 S. W. of the stomach, due to some indiscretion in 767, Yeoman of America v. Rott, 145 Ky. eating food that does not agree with the 604, 140 S. W. 1018, and National Protective person; and if Thomas had only occasional Legion v. Allphin, 141 Ky. 777, 133 S. W. 788, attacks of mild indigestion, or these attacks as supporting the contention that the anonly caused the slight indisposition that swers of Thomas were not so false or mateusually comes from indigestion, as common-rial as to affect the validity of the insurance ly understood, there would be great force contract; but the facts in these cases, and in the argument of counsel that he never many others like them, are so different from had any diseased condition of the digestive the facts in this case that they cannot be system within the fair meaning of the ques- regarded as controlling authority on the tion to which he answered "No." But the propositions asserted by counsel. On the evidence shows conclusively that Mr. Thom- contrary, this court, in many cases, has conas, for three or four years before his death,sistently held, under facts such as appear in had frequently suffered greatly from these attacks; that some of them were so serious as to cause him to fear that he might not survive another attack. It is therefore made plain that the indigestion that he was subject to was not that harmless type that is so common; it was of an aggravated, dangerous form, and Mr. Thomas, being, as the evidence shows, a man of intelligence, must have known the serious nature of these attacks. this record, that there could be no recovery on the contract. Provident Savings Life Assurance Co. v. Dees, 120 Ky. 285, 86 S. W. 522, 27 Ky. Law Rep. 670; Provident Savings Life Assurance Co. v. Whayne's Adm'r, 131 Ky. 84, 93 S. W. 1049, 29 Ky. Law Rep. 160; Illinois Life Insurance Co. v. De Lang, 124 Ky. 569, 99 S. W. 616, 30 Ky. Law Rep. 753; Metropolitan Life Insurance Co. v. Schmidt, 93 S. W. 1055, 29 Ky. Law Rep. 255; Brisou v. Metropolitan Life Insurance Co., 115 S. W. 785; Supreme Lodge of Knights of Pythias v. Bradley, 141 Ky. 334, 132 S. W. 547; Blenke v. Citizens' Life Insurance Co., 145 There is also ample evidence in the record that, if in his application he had answered correctly the question propounded as to his health, and that he had been treated by a Ky. 332, 140 S. W. 561; Knights of Maccaphysician within five years, and that he was bees v. Shields, 156 Ky. 270, 160 S. W. 1043, subject to these attacks about which he so freely spoke to other people, the company 49 L. R. A. (N. S.) 853; Royal Neighbors would have made a thorough investigation of America v. Spore, 160 Ky. 572, 169 S. W. for the purpose of determining whether it 984. would be advisable to accept his application. And the evidence of the medical examiners permitted to go to the jury, as well as that improperly excluded, also makes it very clear that, if the company had been put in possession of this information by the answers of Thomas in his application, it would either have rejected him at once or have made a thorough investigation, and, if the facts developed the conditions that appear in this record, would have rejected his application. [2] It is provided in section 639 of the Kentucky Statutes that: "All statements or descriptions in any application for a policy of insurance shall be deemed and held representations and not warranties; nor shall any misrepresentations, unless material or fraudulent, prevent a recovery on the policy." [3] Upon the whole case, after a very thorough consideration we have reached the conclusion that the verdict of the jury was flagrantly against the evidence and contrary to the instructions of the court. We are also of the opinion that on another trial the court should permit all the evidence offered by the company tending to show that according to the usual course of life insurance business the application would not have been accepted, or the policy issued, if the truth had been stated in the answer or answers made by the insured, and if upon another trial the evidence is substantially the same as appears in this record, the court should direct the jury to return a verdict for the defendant. Wherefore the judgment is reversed, with directions for a new trial not inconsistent with this opinion. subways under, or viaducts over, railroad tracks LEXINGTON within the city, wherever it is necessary for WILKERSON V. CITY OF (Court of Appeals of Kentucky. June 4, 1920.) 1. Municipal corporations 918(1) Twothirds vote on bond issue held to meet requirement for creating indebtedness exceeding annual income. Under Const. § 157, declaring that no municipality may become indebted in any year beyond the income and revenue for such year without the assent of two-thirds of the voters at an election to be held for that purpose, where a municipal bond issue in a city of the second class with a population of more than 40,000 has received the assent of more than two-thirds of those voting on the question, the requirements of the Constitution are met. 2. Municipal corporations 865 (3)—Proposed bond issue held not to exceed constitutional limit in second-class city. Where a city of the second class having a population of more than 15,000 has a floating indebtedness of $108,761.46, provided for in the 1920 levy and an additional indebtedness of $1,464,336.52, and also a bond issue of $75,000, the total value of the taxable property being $33,140,954, a proposed indebtedness of $1,200,000 does not exceed 10 per cent. of the total value of the taxable property as limited in Const. § 158. 3. Municipal corporations 107 (3) — Mayor pro tem. may sign ordinances with same effect as regularly elected mayor. Under Ky. St. § 3235c, subsec. 13, providing that each resolution, measure, or ordinance shall be signed by the mayor or by two commissioners, an ordinance may be signed by a mayor pro tem. alone, notwithstanding that such mayor pro tem. is a commissioner, and it need not, in addition, be signed by another commissioner to be valid. 4. Municipal corporations 918 (3) Sheriff need not advertise municipal bond election. Where a city ordinance ordering an election on a bond issue was regularly passed by the board of commissioners, under Ky. St. §§ 3069, and 3235c, subsec. 12, and regularly advertised by publication for two weeks, such election was properly advertised, notwithstanding that the sheriff did not advertise it as required by the orders of the county court; there being no statute requiring the sheriff to advertise such election. the safety and convenience of the public, as Under Ky. St. § 3058, subsec. 16, conferring the power to purchase, rent, or lease, within the limits of the city or elsewhere, any real or personal property for the use of the city, and to control and improve it, a city of the second class acting under the commission form of government may purchase a site for and erect a municipal auditorium, in which the citizens may exercise their right of assembling and discussing public affairs, and such power carries with it the power to incur indebtedness and levy taxes for such purpose. Appeals from Circuit Court, Fayette County. Consolidated suits by H. Freeman Wilkerson, by A. Coleman Chinn, and by John B. Davis against the City of Lexington and others to enjoin certain bond issues. A demurrer to the answer was overruled in each case, and judgments rendered, denying an injunction and dismissing the petition, and petitioners appeal. Affirmed in each case. Wallace Muir, of Lexington, for appellants. Wm. H. Townsend, Harry B. Miller, and James A. Wilmore, all of Lexington, for appellees. CLAY, C. These three appeals have been consolidated and will be considered in one opinion. The suit of H. Freeman Wilkerson against the city of Lexington and its officers was brought for the purpose of enjoining a bond issue of $500,000 to provide funds for the purchase of a site or sites, and erection thereon of a building or buildings, to be used as a city hall and auditorium, and for other public purposes. The suit by A. Coleman Chinn was to enjoin a bond issue of $300,000 to provide funds for the purpose of defraying the expenses and cost of extending Vine street, from Limestone street to Hanover avenue, and Short street, from Wilson street to Russell avenue, and to construct a subway at the 269(1)—Second-intersection of West High street with the railclass city may extend streets and construct road of the Southern Railway System. The under or over railroad tracks. 5. Municipal corporations Ky. St. § 3094, conferring on the general council of city of the second class, and on the board of commissioners where the commission form of government has been adopted under section 3235c, subsec. 12, exclusive control and power over the streets, roadways, etc., and to establish, open, alter, widen, and extend them, a city of the second class, through its board of commissioners, has power to extend the streets of the city and to construct suit by John B. Davis was to enjoin a bond issue of $400,000 for school purposes. In each case the city filed a comprehensive answer, setting forth all the steps leading up to each issue, and giving a complete financial statement of the city, showing in detail all the indebtedness theretofore existing, the amount of indebtedness proposed to be incurred, together with the prior tax rate and the rate that would have to be levied in order to (222 S.W.) provide a sinking fund and pay the proposed indebtedness. In each case the demurrer to the answer was overruled, and a judgment was rendered, denying the prayer for an injunction, and dismissing the petition. Lexington is a city of the second class, with a population of more than 40,000, and has adopted the commission form of government. Cities of the second class are given authority to issue bonds by section 3069, Kentucky Statutes, which is as follows: sonal property subject to taxation within such city, sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within a period of not more than forty years from the time of contracting council in each year thereafter, at the time the same. It shall be the duty of the general at which other taxes are levied and collected, to levy and collect a tax sufficient for such purpose, in addition to the taxes by this chapter authorized to be levied. Such tax, when col lected, shall be kept in the treasury as a separate fund, to be inviolably appropriated to the payment of the principal and interest of such counsel who shall knowingly vote for any apindebtedness. Any member of the general propriation of money, or for the making of any contract in violation of this act, or any officer of the city who shall knowingly do any act to impose upon the city any pecuniary liability in excess of the authority in this act limited, shall be guilty of a misdemeanor, and, upon conviction, be punished by a fine of not less than one hundred nor more than one thousand dollars, or imprisonment in the county jail not less than one month nor more than one year, or by both such fine and' imprisonment." ed Ordinance No. 1611— "providing for submitting to the qualified vot- "The general council shall not expend any money in excess of the amount annually levied, collected or appropriated for any special object: Provided, if, in any year, the general council shall deem it necessary to incur any indebtedness, the payment of which cannot be met without exceeding the income and revenue provided for the city for that particular year, it shall, by ordinance, order an election by the qualified electors of the city to be held, to determine whether such indebtedness shall be incurred. Such ordinance shall specify the amount of indebtedness proposed to be incurred, the purpose or purposes of the same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund, as herein provided. Such ordinance shall be published for at least two weeks just preceding the election in the official newspaper in and for such city, or by posting written or printed copies thereof at three or more public places in such city, if there be no such official newspaper. Upon filing by the city of a certified copy of an ordinance ordering such an election with the county clerk of the county in which such city is located, thirty days prior to any regular election, it shall be the duty of the county clerk to cause to be printed upon the ballots, to be used in the city precincts of such county at such election, the question of the issuance of bonds by said city as This ordinance, in its completed form, reproposed by such ordinance. The expenses mained on file for the period of one week. thereof shall be paid as other election ex- On September 9, 1919, it was passed by the penses are paid. The election shall be held in unanimous vote of the commissioners, and the manner provided by general law for submitting public measures to a vote of the people, mayor; the regular mayor being so ill that was approved by W. H. McCorkle, the vice and shall be held at the same time and place, he was unable to attend to business. It was and in the same manner, and by the same officers as the regular election of that year. then published in the official newspaper. The votes on said question shall be canvassed and The ordinance specified the amount of incertified by the election officers in the same debtedness proposed to be incurred, the purmanner as votes cast in the regular election. pose of same, and the amount of money necIt shall be the duty of the county board of essary to be raised annually by taxation for election commissioners to canvass the returns an interest and sinking fund. It further proof the election on said question, and certify the vided for the issuing of bonds and the tak result thereof at the same time and in the same ing of the sense of the voters thereon at the manner as the returns of the regular election. "If, upon a canvass of the votes cast at such regular election on November 4, 1919. On election, it appears that two-thirds of all the October 17, 1919, the ordinance was publishqualified voters of said city, voting on said ed in the Lexington Leader, the official question, shall have voted in favor of incur- newspaper of the city, and in each issue of ring such indebtedness, the general council may the paper from said date to November 3, incur such indebtedness and issue bonds of the 1919, inclusive. A certified copy of the ordicity in evidence thereof, and it shall be the nance was delivered to the county clerk of duty of the general council to pass an ordi- Fayette county 30 days prior to the election. nance providing for the mode of creating such On motion of the city an order was entered indebtedness and of paying the same. But such indebtedness shall not, in any event, exceed by the Fayette county court on September the limit provided in the Constitution for cit- 23, 1919, ordering and directing the sheriff ies of the second class. In such ordinances of said county to open a poll at each voting provision shall be made for the levy and col- precinct in the city at the regular election lection of an annual tax upon all real and per- to be held on November 4, 1919, for the pur pose of ascertaining the will of the voters of said city on the issuing of said bonds, and to advertise said election for at least 15 days in some daily newspaper of the city, and also by printed handbills posted in one or more conspicuous places at each precinct of the city and at the courthouse door. The question was placed on the ballot in proper form and duly submitted at the November election. The vote in the affirmative was 2,416, while the vote in the negative was only 851. On December 8, 1919, the board of commissioners enacted Ordinance No. 1643, providing for the incurring of the indebted ness and the issuing of the bonds. This ordinance further provided for the levy and collection of an annual tax sufficient to pay the interest on the bonds, and provide a sinking fund for their retirement as they became due. This ordinance remained on file for one week for public inspection before its final passage. It was then passed by the unanimous vote of the board of commissioners, was approved by the mayor, was published in the official newspaper, and took effect on December 15, 1919. completed form, and was passed by unanimous vote of the commissioners on December 5, 1919. It was then approved by the mayor and published in the official newspaper as required by law. This ordinance levied an annual tax sufficient to pay the interest and principal as the bonds became due. On August 28, 1919, the board of education of the city of Lexington passed a resolution setting forth the necessity of issuing bonds in the sum of $400,000 for the purchase of sites, the erection and equipment of new school buildings, and for the improvement of the buildings already in use, and asked the board of commissioners to adopt the necessary ordinances for the purpose of submitting to the qualified voters of the city of Lexington at the regular election to be held on November 4, 1919, the question of incurring said indebtedness and issuing said bonds. Pursuant to the resolution of the board of education, there was introduced on August 29, 1919, Ordinance No. 1608"providing for submitting to the qualified voters of the city of Lexington the question of incurring an indebtedness of $400,000 and issuing On August 29, 1919, there was introduced bonds of the city therefor, bearing five per Ordinance No. 1606 "providing for submitting to the qualified voters of the city of Lexington the proposition of incurring an indebtedness of $300,000, and issuing bonds of the city therefor, to provide funds for the purpose of defraying the expenses and costs of extending Vine street from Limestone street to Hanover avenue, and Short street from Wilson street to Russell avenue, and construct a subway at the intersection of West High street with the railroad of the Southern Railway System." The ordinance in its completed form remained on file one week for public inspection, and was passed by unanimous vote of the commissioners on September 5, 1919. It was then approved by the vice mayor, the mayor being too ill to attend to business, and was published in the Lexington Leader, the official newspaper of the city. This ordinance also specified the amount of indebtedness proposed to be incurred, the purpose of same, and the amount of money necessary to be raised annually by taxation for interest and sinking fund. It further provided for taking the sense of the voters thereon at the regular election to be held in November. Thereafter the same steps were taken with reference to this ordinance as were taken with reference to Ordinance No. 1611. The question of incurring the indebtedness and issuing the bonds was submitted in proper form to the voters at the regular November election. The vote in the affirmative was 2,525, while the vote in the negative was 904. On December 8, 1919, there was introduced Ordinance No. 1642, authorizing the issue of the bonds. This ordinance remained on file centum interest per annum, payable semiannually, to provide funds for the proper accommodation of the schools of said city, to acquire sites for school buildings, to erect a new junior high school building for white children, a high school building for negro children, and to improve, remodel and make additions to other public schools in said city and to enlarge the sites thereof." This ordinance remained on file in its completed form for one week, and was passed by the unanimous vote of the commissioners on September 5, 1919. It was then approved by the vice mayor, the mayor being ill and unable to attend to business, and was published in the official newspaper as required by law. This ordinance specified the amount of indebtedness proposed to be incurred, the purpose of same, and the amount of money necessary to be raised annually by taxation for an interest and sinking fund. It also provided for taking the sense of the voters thereon at the regular election to be held on November 4, 1919. The question was duly submitted to the voters at that election. The vote in favor of the proposition was 6,003, and the vote against the proposition, 1,778. On December 8, 1919, there was introduced Ordinance No. 1,611, authorizing the issue of the bonds and providing for the levy of an annual tax sufficient to pay the interest thereon and the principal thereof as the bonds became due. This ordinance in its completed form remained on file for one week for public inspection. It was passed on December 15, 1919, by the unanimous vote of the commissioners. It was then approved by the mayor and published in the official newspaper as required by law. (222 S.W.) It statement that each of the bond issues re- commissioner, but as mayor, and his approvceived the assent of more than two-thirds of al has the same effect as the approval those voting on the question, and under the of the ordinance by the mayor himself. repeated decisions of this court this was all is admitted that at a regular meeting of the that was necessary in order to meet the re- board of commissioners held on January 7, quirement of section 157 of the Constitution, 1918, W. H. McCorkle, a commissioner, was declaring that no municipality shall become duly and regularly elected vice mayor, or indebted in any year beyond the income and mayor pro tem., for the years 1918 and 1919. revenue for such year, without the assent of It further appears that at the time he aptwo-thirds of the voters at an election to be proved the ordinances in question the mayor held for that purpose. Logan, etc., v. Gilbert, was suffering from a serious illness, which 151 Ky. 659, 152 S. W. 778; Fowler v. City prevented him from attending to the duties of Oakdale, 158 Ky. 603, 166 S. W. 195; City of his office, and from which he subsequently of Marion v. Haynes, 157 Ky. 687, 164 S. W. died. Under these circumstances, McCorkle, 79. as vice mayor, or mayor pro tem., had the right to approve the ordinances, and the approval of another commissioner was not necessary. [2] 2. Section 158 of the Constitution provides in substance that a city of the second class, having a population of more than 15,000, cannot incur an indebtedness, including existing indebtedness, in excess of 10 per centum of the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness. Aside from a floating indebtedness of $108,761.46, which was provided for in the 1920 levy, the entire indebtedness of the city is $1,464,336.52. The proposed indebtedness herein involved is $1,200,000 in addition to a bond issue of $75,000 for a memorial building, the validity of which is not now before us. According to the 1918 assessment, which is controlling in these cases, the total value of the taxable property in the city was $33,140,954. It is therefore apparent that the indebtedness proposed to be incurred, together with the existing indebtedness of the city, will not exceed 10 per centum of that amount. [3] 3. Subsection 13, section 3235c, Kefftucky Statutes, is in part as follows: "The mayor shall preside at meetings of the board. He shall have no veto power. But each resolution, measure or ordinance shall be signed by him, or by two commissioners, and recorded before it shall take effect. "The board of commissioners shall, at the beginning of its term of office elect, by a majority of all its members, one commissioner to act as mayor pro tem.; and the commissioner so chosen shall be invested with all the powers and shall perform all the duties of the mayor, in the event of his absence from the city or his inability to attend to the duties of his office." [4] 4. Another contention is that the election was invalid, because the sheriff did not advertise the election, as required by the orders of the county court. There is no statute requiring the sheriff to advertise the election. The power to order the election is conferred upon the general council, or the board of commissioners, where the commission form of government has been adopted. Section 3069 and subsection 12, section 3235c, Kentucky Statutes. The only advertisement required is the publication of the ordinance itself for at least two weeks just preceding the election in the official newspaper, or by posting written or printed copies thereof at three or more public places in the city, if there be no such official newspaper. Section 3069, Kentucky Statutes. The ordinances ordering the elections in question were each published in the official newspaper from October 17th to November 3d, inclusive, or for a period of more than two weeks just preThat being true, the ceding the election. elections were properly advertised, and the failure of the sheriff to advertise them in nowise affected their validity. [5] 5. Section 3094, Kentucky Statutes, confers upon the general council of cities of the second class, and hence upon the board of commissioners where the commission form of government has been adopted (subsection 12, section 3235c, Kentucky Statutes)— "exclusive control and power over the streets, roadways, sidewalks, alleys, landings, wharves, public grounds and highways of the city; to establish, open, alter, widen, extend, close, grade, pave, repave, clean and keep in repair the same." In view of the requirement that each resolution, measure, or ordinance shall be signed by the mayor, or by two commissioners, it is insisted that it was essential to the valid- In view of the broad authority thus conity of the ordinances signed by the mayor ferred, it cannot be doubted that the board pro tem. that they should have been signed of commissioners has the power to extend by another commissioner. With this conten- the streets of the city, and to construct subtion we cannot agree. The statute invests ways under, or viaducts over, railroad tracts the mayor pro tem. with all the powers of within the city, wherever it deems it necthe mayor, if the latter is absent from the essary for the safety and convenience of the city or unable to attend to the duties of his public, as well as the consequent power to office. Hence, when the mayor pro tem. ap- levy taxes and incur indebtedness for such proves an ordinance, he does so, not as a improvements. 19 R. C. L. p. 782; Argen |