121 Ky. 119 | Ky. Ct. App. | 1905
Opinion by
Affirming.
The council, of appellant, city of Bardstown, desiring to annex to its corporate limits certain contiguous territory upon which is situated its waterworks and reservoir, on December 13, 1901, enacted an ordinance defining accurately the boundary of territory proposed to be annexed. Small parcels of the territory in question are owned by J. R. Barber, K. C. Barber and the Louisville & Nashville Railroad Co., respectively; the remainder, by the city. After the enactment by the city council of the ordinance mentioned, it was given to the Record Printing Co., publishers of a weekly newspaper of the city known as the “Nelson Record,” to be published in four issues of that paper; there being no daily newspaper published in Bardstown. The Nelson Record was issued on Thursday of each week, and as the ordinance given it for publication did not reach its office until Wednesday, the day following its adoption by the council and the day before the usual) time for the weekly issue of the paper, there was not time to set it in type or publish it that week. It did, however, appear in the next issue of the paper, the following week; that is,' on December 22d. There was no issue of the paper the succeeding week embracing the Christmas holidays, it being the custom of weekly newspapers in Kentucky not to issue during that season. Consequently no publication of the ordinance was made that week. On January 2, 1905, and before the day arrived for the next regular' issue of the Nelson Record, which, if issued, would have con
Bardstown is a city of the fifth class, and therefore, in the matter of enlarging or reducing its corporate boundary, the powers of the city council are defined by secs. 3611 and 3612, Ky. Stats. 1903,
Sec. 3611 provides: “Whenever it is deemed desirable to annex any territory to any city of this class, or to reduce the boundaries thereof, the city council thereof may enact an ordinance defining accurately the boundary of the territory proposed to be annexed or stricken off, and such ordinance shall thereupon be published in at least ten issues of the daily paper published in the city; or, if there be no daily paper published in the city, then in at least four issues of a weekly paper published in the city; or, if there be no daily or weekly paper pub-fished in the city, then by posting copies of the ordinance for at least ten days in four of the most public places in the city. In not less than thirty days after the enactment of such ordinance, if the pub
Sec. 3612 provides: “Within thirty days after the enactment of an ordinance, proposing’ to annex territory to any city, or to reduce the limits thereof, one or more residents or freeholders of the territory proposed to be annexed or stricken off, may file a petition in the circuit court of the county, setting forth the reasons why such territory or any part thereof should not' be annexed, or why the limits should not be reduced. The case shall be tried according to the rules and practice prescribed for the trial of equity cases, but without the intervention of a jury. If the court be satisfied, upon the hearing, that less than seventy-five per cent, of the freeholders of the territory to be annexed or stricken off have remonstrated, and that the adding or striking off of such territory to the city will be for its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed or stricken off, it shall so find, and said annexation or reduction shall be approved and become final. If the court shall be satisfied that seventy-five per cent, or more of the resident freeholders of the territory sought to be annexed or stricken off, have remonstrated, then such annexation or reduction shall not take place, unless the court shall find from the evidence that a failure to annex or strike off will materially retard the
According to the provisions of the statute, supra, there are three steps to be taken before contiguous territory can be annexed to tile corporate boundary of a city of the fifth class or its corporate territory reduced. First, there must be an enactment of an ordinance defining accurately the territory to be annexed or stricken off; second, there must be a publication of such ordinance four times in a weekly newspaper in the city, if there is no daily paper published therein; third, in not less than thirty days after the enactment of the ordinance defining accurately the territory to be annexed or stricken off, if the publication of same “in at least four issues” of a weekly newspaper has been made and no petition of remonstrance is filed in the circuit court by one or more resident freeholders of the territory to be annexed or stricken off, within thirty days of the enactment of the first ordinance, the city council may by ordinance annex to or strike from the city limits the territory described in the first ordinance, and it shall upon the enactment of the last ordinance become a part of such city or shall be stricken therefrom.
It must be taken as true that the petition of the
We are therefore of opinion that the enactment by' the city council of the ordinance annexing this territory was premature, unauthorized, and illegal, and that, the ordinance being void, the territory it attempted to annex was not within the corporate limits of the appellant city when appellee committed the offense for which he was arrested. Consequently he can not be prosecuted in or tried by the police court, as its jurisdiction is confined to offenses committed within the city’s limits. In petitioning the circuit court for the writ of prohibition, appellee invoked the only remedy known to the law; and the granting of the writ by that court upon the grounds presented was eminently proper.
Wherefore the judgment is affirmed.
delivered the following extended opinion, December 16, 1905:
We do not agree with counsel for appellant that the opinion in this case can be construed to convey the meaning that the first ordinance — that is, the one defining the boundary of the territory proposed to be annexed to the city — is void because not published within the thirty days next after its enactment by the council. The opinion only holds that as it was not published within that time, and the petition of appellee resisting the proposed annexation of territory was filed in the circuit court before that ordinance had been published in four issues of the weekly newspaper and before the final or annexing ordinance was adopted by the council, that body had no right to ignore the filing of the petition and pass the final or annexing ordinance before the circuit court passed upon the question raised by the peti
The opinion is extended to the extent herein indicated.