Lewis v. Town of Brandenburg

JUDGE DuRELLE delivered the opinion of the court. In 1896 the trustees of the town of Brandenburg passed an ordinance reciting that it was desirable and necessary to extend the boundary of the town on the east, north and west so as to include a described boundary of land, and declaring that the trustees proposed to annex such described boundary, which ordinance was adopted and published in accordance with section 3664, Kentucky Statutes. Within thirty days from the adoption of the ordinance, the appellant, who was a resident and freeholder of the territory proposed to be annexed, as permitted by section 8665, Kentucky Statutes, filed his petition in the circuit court, setting forth reasons why the territory should not be annexed. Upon the trial the circuit court found as a fact that less than 75 per cent, of the freeholders of the territory had remonstrated, that the addition of the territory to the town would be for its interest, and that such addition would cause no material injury to persons owning real estate in the territory' sought to be annexed, and approved the annexation. Appellant seeks a reversal here upon two grounds: First, that the trustees who adopted the ordinance did not constitute a legal board of trustees, — 17 — and the ordinance was therefore void; and, second, that the act under which it was attempted to annex the territory was unconstitutional, as being in violation of section 28 of the present Constitution, these being the only grounds urged for reversal in this court, though other contentions appear to have been made in the circuit court. The petition states — and is not denied in this behalf— that no election had been held for the election of trustees by the voters of the town at the time of the adoption and passing of the ordinance, and that the persons who acted as trustees acted under an order of the court of Meade county appointing them trustees, and without other authority. The order of appointment recites that there being no election held for trustees at the last election, and vacancies existing, it was ordered that certain named persons be appointed the trustees for said town, who thereupon qualified; and it is claimed by appellant that the power of appointment to fill vacancies in such boards was given to the county judge, and not to the county court, by section 3692, Kentucky Statutes, being an amendment adopted March 19, 1894, to the act for the government of towns of the sixth class. By the original act (Acts 1891-93, page 887, article 7, section 20) it would appear that no provision was made for filling vacancies in the board of trustees, except by the board itself. By an amendment of March 16, 1894 (Acts 1894, page 187), the section referred to was 'amended by adding the words:' “And if, from failure to elect at the time fixed by law, or other cause, there shall be a vacancy in the entire board of trustees, then the county court of the county shall have power to appoint five trustees, who shall hold their office until the next reg — 18 — ular election.” This amendment is omitted from the Kentucky Statutes, possibly upon the theorj^ that it was repealed by an act adopted three days later, March 19, 1894 (Acts 1894, page 215; Kentuclsy Statutes, section 3692), by which it was provided that, “when a vacancy occurs in the board of trustees, the county judge may fill such A'acancy by appointment until the next regular election.” Appellant contends that the latter amendment took from the county court the power of appointment which had been given the court by the amendment adopted three days before, and conferred that power upon the county judge. On the other hand, it is argued for the appellee that the two amendments are perfectly consistent; the amendment of March 16th providing for the contingency of there being a vacancy in the entire boaxd of trustees, in which event the county court was to have power to appoint five trustees to hold office until the next regular election, while the amendment of March 19th provides that “when a vacancy occurs in the board of trustees, the county judge may fill such vacancy by appointment until the next regular election,” and t'he provision for a vacancy occurring was obviously intended to apply to a vacancy caused by the death, resignation or disqualification of some member of the board and not at all to a case where there might be a “vacancy in the entire board of trustees,” from a failure to elect (that is to say, when there was no board of trustees in being); that the grant of power to the county judge to fill a vacancy is not comprehensive enough to repeal by implication the grant of power to the county court to create an entire board of trustees; that the latter amendment is not specific enough to indicate a legislative intent to take from the county court the power of appointing an entire board, — 19 — apon failure to elect; and that it would be an unfair construction to hold that the Legislature, having given the power of appointment of an entire board to the county court, so that when exercised it became matter of record intended to take that power from a court of record by the grant of a less power to the county judge. The difficulty with this construction is that the second amendment provides for amending the section “by adding thereto the following words: .... so that said section as amended will read as follows,” and that the language following excluded the addition made by the first amendment to the original section. This objection is met, however, when we consider that if to the original section, as amended by the act of March 16th, there be added the language provided to' be added by the act of March 19th, it will not make the section “read as follows,” viz., as it is provided it shall read by the act of March 19th, and that the latter act does not provide for striking out of the section the words which three days before had been added thereto by the first amendment. And we have reached the conclusion that the two amendments, fairly construed, are not inconsistent, and effect should therefore be given to each. It is therefore unnecessary to consider what application the case of Pence v. City of Frankfort, 19 Ky. Law Rep., 721 [41 S. W., 1011], bears to the case at bar, upon the question whether this is a collateral attack upon the exercise of power by de facto officers. It is further urged by appellant that the act is unconstitutional as being a delegation to the circuit court of legislative power, and so within the inhibition of section 28 of the Constitution, which forbids the exercise by persons being of one of the departments of government of — 20 — any power properly belonging to either of the others, except where expressly directed or permitted by the Constitution. A number of authorities are cited to show that the power of establishing municipal corporations, and enlarging and contracting their boundaries, is legislative in its nature; and the case especially relied on is Forsyth v. City of Hammond, 18 C. C. A., 175; 71 Fed., 443, from Indiana. The statute of Indiana provided that the board of county commissioners might make the order of annexation of territory, and also provided for an appeal by either party to the circuit court from the' determination of the commissioners; and it was held (syllabus) that “the determination, under such statutes, by boards of county commissioners, is a legislative function, which can not be performed by the court, and hence the provisions of the statutes giving the right of appeal to the courts from such determination are unconstitutional and void.” It might be suggested that if counsel is right in his contention that the statute now under consideration, in substance, gives a right of appeal to the circuit court from the legislative action of the board of trustees, and the Indiana case therefore applies, it would merely result in cutting off the appellant from the remedy which he himself has sought. It has been decided in Morton v. Woodford, 18 Ky. Law Rep., 271 [35 S. W., 1112], that the power conferred by the Legislature on the circuit court to • establish towns was constitutional, and not in conflict with section 28; and it would seem that, so far as constitutional authority is concerned, the power to establish a town would include the lesser power to enlarge its boundary. Moreover, by section 59 of the Constitution it is provided that “the general assembly shall not pass local or special acts .... to authorize — 21 — the opening, altering, maintaining or vacating roads, highways,streets, alleys, town plats,” etc. By section 156 it is provided that the organization and powers of each class of cities and towns shall be defined and provided for by general laws. Under the latter section the statute was enacted which gave authority to towns of the sixth class to enlarge their boundaries, and by this general law the manner in which such annexation of contiguous territory was to be accomplished was fixed. It was provided first that an ordinance should be enacted and published, giving notice to the public of the intention of the board of trustees to annex the territory; then there was given not a right of appeal to the circuit court, but, for the protection of the residents and freeholders of the territory proposed to be annexed, a right to a special proceeding, somewhat in the nature of an application for a writ of injunction, whereby, if the circuit court found the existence of certain specified facts alleged by the petitioner remonstrating, the town was prohibited from attempting to annex the territory for the space of two years. On the other hand, if the court found adversely to the contention of the petitioner its judgment did not work an annexation, but the judgment, when entered, was to “be certified to the legislative board of the city, who may thereupon annex to, or strike from, the city or town the territory described in the judgment.” Granting, for the sake of argument — what we are by no means disposed to concede — that under our Constitution, with its evident purpose to take from the Legislature its power of action by local statutes in such local matters as this, and confer it upon other bodies of magistracy, the power of enlargement of the boundaries of municipalities is a purely legislative power, it may be said that in this — 22 — case it was conferred upon a legislative board, and that to the circuit courts was given, not the right of reviewing the legislative action of such board, but, by judicial investigation, to determine and adjudge whether facts existed which authorized such action by the local Legislature. The judgment is, therefore, affirmed.