110 Ky. 743 | Ky. Ct. App. | 1901
delivered the opinion oe the court. Reversing.
The Legislature passed “An act to provide for the establishment of public .parks in and adjacent to the city of Louisville, Kentucky, and .the improvement and maintement of the same,” which was approved May 6, 1890. 3 Acts 1889-1890, p. 2Í67. The act authorized the condemnation of property for park purposes, and specifically provided how a proceeding should be instituted and conducted to accomplish that purpose. The Legislature passed “An act for the government of cities >of the first-class,” which was approved July 1, 1893. Subdivision 8 of that act relates to parks, and contains 20 sections, which are sections 2840-2859, inclusive, of the Kentucky Statutes. It is unnecessary to enumerate the various provisions of subdivision S. It is sufficient to say that it provides for a board of park commissioners, how they shall be elected, fixes their compensation, designates the power conferred upon them, etc- The entire care, management, and custody of the parks and grounds used for park purposes is committed to 'the park commissioneirs, and they can make contracts, sue, a.nd be sued. The board of park commissioners, heing of the opinion that it had a right to condemn land for park purposes, passed a resolution looking to the condemnation of the property described in these proceedings. This action was instituted by filing a petition in the law and equity division of the Jefferson circuit court, and in which petition, as amended, it is averred that that part of the act of 1890 establishing the board of park commissioners which prescribed the course of procedure to condemn property for park purposes was in force, not being repealed by the act of 1893 for the government of cities of the first-class. It is claimed that the act of 1893 repealed that part of the act o.f 1890 which provided a course of pro
■Section 2852, Kentucky Statutes,-reads as follows: “When ever, in the opinion of the board, property shall be needed for any of the purposes herein contemplated, either within or beyond the ‘boundaries of the city, and within the -county in which such city 'is situated, the board may, by resolution reciting isu-ch need, order the condemnation of such property, and proceeding for such condemnation shall be had in accordance with the provisions of sections 99, 100, 101, 102 and 103 of the act for government of cities of the first-class. If any member of the board be the owner of or interested in any property necessary; in the opinion of a majority of the other members of the board, to be taken for park purposes, then proceeding to acquire such property shall be by condemnation, and such facts of ownership or interest -of such members, and the opinion of the majority -of his colleagues and to ihe necessity for condemnation, s-hall be fully set forth in ,tke petition.” Sections 100-103 correspond to sections 2861-2864, Kentucky Statute, and t(he reading of -which show th-ey have no relation whatever to public parks, but to the board of public safety. They do not throw -any light upon the question here involved, but the reading of which show that the Legislature made a mistake in making any reference to them, as they do not relate to the subject of parks. Section 99, referred to, is section 2831,
Section 2852. Kentucky Statutes, quoted above, authorized the board of park commissioners to condemn land for park purposes, and that section recognizes that the proceedings shall be entmmeneed by a petition. So.the act confers the right to condemn property for park purposes, and recognizes that the initial step in court is by petition. Did the Legislature intend to confer the right to condemn property for park purposes, and authorize the filing of a petition for that purpose, and then leave the court without
This brings us to the question involved in the case. The right to condemn property for park purposes has been expressly given, and the proceeding to be instituted is by petition. dan a court of general jurisdiction prescribe or