126 Ky. 769 | Ky. Ct. App. | 1907
Opinion of The Court by
Affirming.
The city of Shelbyville, one of the old cities of this State, is a city of the fourth class, thrifty and growing. It proposed by proceedings conforming to section 3483, Ky. Stats. 1903, to enlarge its territory by including within the corporate limits of the city a certain boundary which embraces real property owned by appellants and others; some of the latter being voters. This suit was filed in the circuit court to enjoin the city from proceeding in the matter upon the ground that the statute violates section .1 of the fourteenth amendment to the Constitution of the United States, and is therefore void. The appellants are all women. They, with certain corporations who joined as plaintiffs in the suit in the lower court, own unimproved lands within the territory proposed to be annexed to the city, and which was not within any city or town when the proceedings were begun. The complaint is that to take the lands of appellants into the city will add a burden of municipal taxation without benefit; and that, as the statute regulating the procedure for adding to the boundaries of a city discriminates against women and all other persons affected Who are not voters, they are not afforded equal protection of the laws, inasmuch as the statute pro
For the more convenient study of the subject, the existing statute, which is the authority for the city’s procedure and the subject of appellant’s complaint, is set forth at length as follows: ‘ ‘ The boundaries of cities.of the fourth class shall, until changed as herein provided, remain as now established by law. "Whenever it shall be deemed desirable to annex any territory to a city in this class, or to reduce the boundaries thereof, the same may be done¡ in the following manner : The board of council of such city shall, by. ordinance, accurately define the boundary of the territory proposed to be annexed or stricken off. Such ordinance shall be published for not less than three weeks in a newspaper in such city or county; if there be no newspaper published in the city or county, the ordinance shall be advertised by handbills, to be posted for at least fifteen days at four or more public places in the city, and at the same number of the most public places within the territory proposed to be annexed or stricken off. Within thirty days after the adoption, publication and advertisement of such ordinance, a petition shall be filed in the circuit court. of the county within which said city may be situated, in the name and on behalf of the city, ’setting forth the passage, publication and advertisement of such ordinance’, the object and purposes thereof, together with an accurate description by metes and bounds of the territory proposed to be -annexed to or stricken from the city, and praying for a judgment of .the court to .annex said territory to -or strike same from
The first three Constitutions of this State made no reference to the incorporation of towns and cities. That was done by the Legislature as an incident of the powers of the sovereign state lodged in its political department. Charters were then granted to cities and towns by special act of the Legislature, as anciently was done by special act of Parliament. The Legislature judged of the necessity and propriety of the act. It considered each separate case on its merits, and gave to the municipality such territory and such form of government as was deemed proper, and changed each at will. The Convention
The question of benefits and burthens in the proposed annexation cannot be said to involve a justiciable right of the individual taxpayer. But it is unquestionably a proper subject of consideration in determining whether the municipal territory be extended or reduced. It is impossible now for the Legislature to pass upon each proposed annexation or diminution of territory. Either a hard and fast rule, certain to bear onerously in many instances, must be adopted by general law, or by general law the ascertainment of the fact whether the benefits and burdens are counterpoised, must be found to exist by some other tribunal. "We are unable to perceive a distinction between the ascertainment of that fact by the court and the ascertainment of the majority of the voters’ wills by a ministerial officer appointed to hold an election, as Cooley says may be done. Cooley, Const. Lim. pp. 143-230. The Legislature is prohibited from granting incorporating charters of any kind by special laws. All incorporations in this State, private as well as municipal, are now required to be by general laws. Yet private corporations are granted charters by specially selected tribunals upon the ascertainment by them of certain requisite facts. No one supposes now that that is a delegation of legislative authority. Nor does it confer legislative power upon the courts. .Many acts of government are so complex as to partake of some or all the features of the three' — legislative, executive, and judicial. Yet there are certain controlling marks by which each act is relegated to its own department. It is not infrequent that an act- of the Legislature is not effective until and unless some other department
The judgment of the circuit court is affirmed.