Jobe v. City of Erlanger

CULLEN, Commissioner. The appellants are resident freeholders in an area of some 350 acres proposed to be annexed by the City of Erlanger, a third-class city. They have undertaken to appeal from a judgment of the circuit court, in a remonstrance suit, upholding the annexation. The statute governing annexation by third-class cities, KRS 81.190(4), provides that there shall be no appeal from the judgment of the circuit court in a remonstrance suit. There is a similar denial of an appeal in the statute relating to annexation by fifth-class cities, KRS 81.230(3), but an appeal is permitted by the statutes applicable to cities of the first, second, fourth and sixth classes. The appellants maintain that the statutory denial of an appeal in third-class city cases is unconstitutional as discriminatory, special legislation. A similar contention was made, and rejected, in Yount v. City of Frankfort, Ky., 255 S.W.2d 632, wherein the court cited Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089, as authority for the proposition that the legislature constitutionally may provide different methods of annexation for different classes of cities. We believe the holding in the Frankfort case is sound. Under Section 156 of the Kentucky Constitution cities may be divided into classes for the purposes of organization and government. Acts relating to organization and government of cities may distinguish between cities according to class without violating constitutional prohibitions against special legislation. Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631. Annexation is a matter of organization and government of cities. Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089. The appellants argue that even if they have no statutory right of appeal they nevertheless are entitled to an appellate review of the constitutional question of whether the annexation constitutes a taking of property without due process of law and without compensation. See Chesapeake & Ohio Railway Company v. Murphy, 314 Ky. 309, 234 S.W.2d 969. The appellants say that the annexed area includes two farm tracts, one of 60 acres and the other of 40 acres, and a two-acre orchard tract, none of which is adaptable for municipal uses. The appellants contend that the taking of these tracts is unconstitutional under the ruling in Chesapeake & Ohio Railway Company v. City of Silver Grove, Ky., 249 S.W.2d, 520. It is doubtful whether these appellants are entitled to raise the constitutional question, because they do not own any of the three tracts claimed to be incapable of municipal use. However, the claim of unconstitutionality cannot in any event be sustained, because the evidence does not show that the three tracts are incapable of or inadaptable for municipal uses or purposes, within the meaning of the Silver Grove case, but only that the tracts are not presently being devoted to urban use. We have accepted the appeal only for the purpose of passing on the constitutional [677] questions raised. The question of whether the city adequately sustained its burden of proof is not reviewable. The judgment is affirmed.