Affirming. The action was instituted by appellee City of Henderson, a third class city operating under the commission form of government, against appellant Edwin C. Selle in his capacity as a citizen, taxpayer, and customer of electric light and power distributed by the municipally owned electric light and power system, and also as a representative of all citizens, taxpayers, and customers of the electric light and power system. To support the suit against appellant as representative of a class, appellee alleged that the questions involved were of a common and general interest to all of the persons classified and that such persons were so numerous as to render it impracticable to bring all before the Court within a reasonable time. Summons was duly served on appellant more than ten days prior to the commencement of the January 1949 term of the Henderson Circuit Court. The action was placed on the equity docket which was called on the third day of the term, at which time appellee moved the Court that appellant be designated by order of Court to represent all of the citizens, taxpayers, and consumers of the electric light and power system. Appellant manifested to the Court that he was willing to *Page 601 assume the responsibilities of class representative, whereupon the Court sustained the motion and designated him as the representative. Appellant denied the allegations of the petition for want of sufficient information to form a belief that they were true. He pleaded an affirmative defense which hereinafter will be discussed and prayed for an injunction to prevent appellee from issuing the Electric Light and Power Revenue Bonds, to validate which the action was instituted. Evidence was taken to sustain the allegations of the petition and the case was submitted to the Court on the pleadings, evidence, and exhibits. Thereupon the Court entered judgment approving and validating the bond issue. The case is before us for final determination in respect to the correctness of the judgment of the Chancellor.
For many years the City of Henderson, in a proprietary capacity, has owned and operated an electric light and power system furnishing electricity for domestic, commercial, and industrial purposes to the inhabitants of the City, on a revenue producing basis. The operating equipment of the plant is old, obsolete, and almost worn out. In the past ten years the population of the City has doubled, and twenty-one new industries have located therein. By reason of this growth, the demand for electric light and power has increased materially. Several years ago the capacity of the generating plant reached its peak and additional electricity was obtained from a line connected with the electric system of the Kentucky Utilities Company. This source of supply soon was exhausted, and it became apparent that the City would either have to rehabilitate its generating plant, add new machinery to it, or build a new one. In the year 1945, the then Board of Commissioners of the City employed Black and Veatch of Kansas City, Missouri, as consultant engineers to inspect the plant and records of the system, survey the needs of the community, and submit recommendations to increase the capacity of the system. Complying with these directions, the engineers submitted a report recommending construction of an entirely new generating plant under several alternative plans, and estimated the cost of complying with these recommendations at the approximate sum of $2,000,000. The Board of Commissioners then adopted an ordinance providing for the issuance and sale of "City of Henderson *Page 602
Electric Light and Power Revenue Bonds," in the principal amount of $2,100,000 pursuant to KRS
The Board of Commissioners is composed of the Mayor, elected for a four-year term, and two Commissioners, elected for two-year terms. The Mayor serving in the year 1946 held over, but new Commissioners defeated the then incumbent Commissioners in a campaign the major issue of which was the question of the adoption or the repeal of the ordinance we have been referring to. After taking office, the newly constituted Board of Commissioners employed Burns and McDonnell, consultant engineers of Kansas City, Missouri, to make a *Page 603 survey of the entire electric situation in the City of Henderson, including the feasibility and desirability of purchasing electric current from outside sources in lieu of generating it, and to report on and make recommendations in respect to a plan to afford relief for the already overtaxed plant during the period required to rehabilitate or enlarge the then existing plant or to construct a new one. The Burns and McDonnell report recommended the construction of a new plant but disagreed with the Black and Veatch report in respect to the construction of a cooling system for circulating water. The Burns and McDonnell report recommended a "river intake" whilst Black and Veatch had recommended the construction of a "cooling tower." The "cooling tower" plan would cost approximately $325,000 less than the river intake" plan. Other differences were in respect to standby equipment; Burns and McDonnell recommended the installation of Diesel generators to provide an immediate source of additional power, whilst Black and Veatch made no inspection of, or report on, this phase of the project. The Board of Commissioners were satisfied with the findings of Burns and McDonnell and in the spring of 1948 adopted an ordinance providing for the issuance and sale of revenue bonds to provide funds for the purchase and installation of the Diesel equipment for immediate use. No referendum was asked on this ordinance which provided for bonds in the approximate amount of $450,000, but only $405,000 of which were required to be issued to make the improvement contemplated. No further step was taken in respect to the recommendations of the engineers until October, 1948, when a petition was presented to the Board of Commissioners, containing the required number of signatures, requesting the Board to adopt an ordinance incorporated in the petition and which provided for the issuance and sale of "City of Henderson Electric Light and Power Revenue Bonds" in the principal sum of $3,000,000 to provide for the construction of a new power plant as recommended by Burns and McDonnell and to refund the $405,000 of bonds outstanding. On advice of counsel, the Board of Commissioners entertained a doubt as to their legal right to adopt such an ordinance in view of the defeat of the similar, though not identical, plan voted down at the 1947 regular election. Accordingly, the Board of Commissioners refused to adopt the ordinance *Page 604 but directed the initiative ordinance to be submitted to the voters of the City at the regular election to be held on November 2, 1948, at which time it was approved by a majority of votes cast on the question. The ordinance authorizing the vote to be had on the initiative ordinance directed that, in the event it should be approved by a majority vote, an action should be instituted by the City for the purpose of obtaining a determination of such legal questions as might be presented in opposition to the validity of the ordinance in the event that no such action should be filed by a citizen or taxpayer of the City. The Board of Commissioners waited seven weeks before instituting this suit in order to allow any disappointed citizen time in which to bring the action himself.
Appellant is represented in this action by attorneys employed by prospective purchasers of bonds herein authorized by the Chancellor to be issued and sold. The questions presented by the record are:
(1) Under the provisions of KRS 89.250, may voters, equal in number to at least twenty-five per centum of the total number of votes cast for both candidates for mayor at the last preceding election for mayor, initiate and cause to be adopted an ordinance in many respects similar to, but not identical with, an ordinance which by referendum was submitted to and rejected by the voters one year earlier? (2) What constitutes reasonable notice of an election in the absence of statutory direction? (3) Do the inhibitions of sections 157 and 158 of the Constitution apply to the issuance and sale of revenue bonds? (4) Does this record disclose a bona fide controversy between appellant and appellee? (5) Does the record disclose facts calling for class representation? (6) Is the judgment herein binding on all citizens, taxpayers, and consumers of electricity in the City of Henderson in esse and in futuro?
In Ginsberg v. Kentucky Utilities Company,
The failure of the Legislature to direct the manner for giving notice that an election is to be held either on a petition protesting the passage of an ordinance or one initiating its passage does not provide a basis for a judicial declaration that no notice of any kind must be given. Mollette v. Board of Education of Van Lear Graded District,
The third question has consistently been answered *Page 607
in the negative by this Court in many cases, some of which are City of Bowling Green v. Kirby,
Counsel for appellant suggests that since they represent prospective bondholders, the case may be termed a friendly suit, and being a friendly suit, the Court might be of the opinion that a real controversy does not exist between the parties and that both sides might desire a declaration upholding the validity of the bonds. It seems to us that this suit has been practiced with all the care that could have been given it by attorneys, not only antagonistic in purpose but antagonistic in person as well. It appears counsel for appellant have raised every question which would throw any light on the subject presented for our determination, and in their brief they have explained their reasons for not presenting other questions which have been presented in other cases and decided in favor of the validity of bonds: such as the validity of competitive bidding to establish interest rates which was upheld in Funk v. Town of Strathmoor Village,
We think the record is replete with facts which call for class representation. Appellant is Secretary and Trust Officer of the Ohio Valley Trust Company of Henderson, and neither he nor the institution for which he works is connected in any way with the City Administration, nor at this time do they have any interest in the bonds in question. He has the same interests as any and all other citizens, taxpayers, and consumers of electricity, and any failure on his part to raise a question affecting their interests would have the same effect on his own interests. We will take judicial knowledge of the fact that the citizens, taxpayers, and consumers of electricity of a third class city (and Henderson is one of the largest third class cities in the Commonwealth) are far too numerous to require appellee to bring each and every one of them before the Court by personal process. The shifting of population and numerous births and deaths would complicate the procedure to such an extent that it would be impossible ever to obtain judgment if each member of the class personally were required to be made defendant in the suit. As we have already observed, the record in this case discloses that it is free of collusion. Appellant has discharged his duty in admirable fashion by making a diligent and good faith investigation and requiring appellee to introduce proof as to all matters beyond his particular knowledge, and a reading of the briefs in the case discloses that counsel have withheld nothing material to the issue. So we hold that the judgment validating the bonds is without error and is binding on all citizens, taxpayers, and consumers *Page 609 of electricity in the City of Henderson in esse and in futuro.
The judgment is affirmed.