111 Ky. 436 | Ky. Ct. App. | 1901
Opinion op the court by
Granting the Writ op Mandamus.
It appears from tbis record' that the plaintiff on the 1st day of February, 1901, filed his petition in the Campbell circuit court to test the validity of a certain- ordinance passed by the general council of Newport, which ordinance is set out and properly described in the- petition, together with all the proceedings connected with and pertaining thereto. It is claimed that said ordinance is invalid, unconstitutional, and void. Said petition is numbered 13,254 upon the record's of said court. It further appears that on the 1st day of February, 1901, a written notice was duly served upon the said1 city of Newport by said Shoemaker, notifying said city that he would on Saturday, February 2d, move the said1 court for judgment upon his said petition, and that in pursuance thereof, and on said February 2d, the said city, through its
The power of this court to issue a mandamus in a proper case is beyond dispute, and in fact is conceded by the defendant. It is conceded by defendant that the record as presented by plaintiff truly shows the only orders made in the case. But it is the contention of defendant that he has not been negligent or remiss in disposing of the action instituted by Shoemaker. The constitutionality of section 3063, Kentucky Statutes, is also denied or questioned. The section of the statute gives to. any hona fide citizen and resident of any city the right, upon ex parte petition filed in the circuit court of the county, to have the validity of a city ordinance tested; and it is miade the duty of the said court to give such cases precedence of all other cases, so that prompt decisions may be rendered. It is manifest that a prompt decision as to the validity of city ordinances should be had. The business of municipalities is often urgent, and large interests, both of person and property, are controlled or disposed of under and by virtue of city ordinances. Hence we are of opinion that the enactment of the section supra was a proper exercise of legislative' authority, and is in nd sense a special or local, law.
At the time the submission of this cause was set aside
Whole court sitting.
expresses the following views:
I concede that the court has the authority to grant a writ of mandamus, and'that it is its duty to do so in proper cases; hut, in my opinion, it is a power that should be sparingly exercised. 1 do not think the facts of this case justify the court in awarding the writ. The proceeding is ex parte, and the result of it affects the city government, — a question in which the citizens of Newport are interested. Upon an examination of the ease after it was submitted, the judge of the Campbell circuit court was of the opinion that proper evidence had not been furnished to enable him to pass upon a question of such vital importance. He therefore set aside the order of submission, giving as his reason therefor that the case was not properly prepared for trial. Had it been a case affecting alone the plaintiff, the court could with propriety have proceeded to render judgment in the case. I regard this ¿s an entirely different question from one where a plaintiff seeks to recover a pig or a calf, and desires his. case to be submitted to the court without preparation. His petition could be dismissed without prejudice to anybody except himself. Whatever way the court may have decided the question involved in this case, it had a material effect upon the public interest; and, therefore, as it was an ex parte proceeding, I think the court acted wisely in deciding that the case should be properly prepared before it gave a judgment which must declare the ordinance in question valid or invalid.