199 S.W.2d 123 | Ky. Ct. App. | 1947
Dismissing petition.
The General Assembly, at its 1946 Session, amended several sections of Chapter 81 of the Revised Statutes relating to the incorporation of cities and towns. Chapter 42, Acts of 1946. But the provision of many years standing that a Circuit Court should declare the establishment of a municipality when certain facts were shown was re-enacted. James R. Engle and two others, for themselves and 1,001 other residents of the St. Matthews community, which is contiguous to Louisville, instituted proceedings to have it incorporated. Three different groups filed answers in objection and challenged the constitutionality of the Act upon several grounds. The court expressed the opinion that Section 4, which authorizes a proceeding for incorporation to be maintained either by 500 or a majority of the voters residing within the boundary of the proposed city, whichever is the less, violates Section 2 of the Constitution prohibiting the exercise of arbitrary power by the Legislature. The court, therefore, declined to set the case for a hearing on the merits. The defendants tendered a draft of a consistent judgment, and moved that it be entered. Upon objection, the court directed that it be endorsed as tendered; but stated that the tendered judgment would not be signed until a certain date in order to enable the petitioners to seek a writ of prohibition or mandamus in this court.
Thereupon, Engle et al. filed this original action in this court against the Honorable W. Scott Miller, Judge of the Chancery Branch, Second Division, of the Jefferson Circuit Court. They prayed for a writ prohibiting the entering of any judgment decreeing that any part of the Act is unconstitutional, and for a writ of mandamus directing the respondent to set the case for hearing upon the questions of whether the population within the described boundary is sufficient and the proper notice had *733
been given or publication made. This method of seeking a review of the chancellor's decision is thought to be necessary because of the provisions of KRS
The authority of this court as one of original jurisdiction, conferred by Section 110 of the Constitution, is confined to the control of a Circuit Court whenever it is (1) proceeding without jurisdiction or (2) is proceeding erroneously within its jurisdiction and (3) there is no adequate remedy by appeal and a great injustice or irreparable injury would result unless the court is restrained or directed to do something affirmatively. This is familiar law. Evans v. Humphrey,
The power of the Legislature to deny the right of appeal has always been recognized. Section 110, Constitution; Mason v. Montgomery County Board of Education,
The statutes declare that an appeal from a final judgment of a circuit court may be taken to this court as a matter of right in all cases other than those specifically excepted, in none of which does the proposed judgment fall. KRS 21.060; Civil Code of Practice, sec. 734. Therefore, the denial of the right of appeal contained in KRS
In Morton v. Woodford,
Our conclusion is that there is a right to appeal from the proposed judgment, if and when it becomes final, in declaring a portion of the Act of 1946 to be unconstitutional. Concerning that question, we have formed no *735 opinion and, of course, express none. Therefore, as there is a remedy by appeal, the prayer of the petitioners for a writ of prohibition or mandamus is denied and the petition is dismissed.