Miller v. City of Georgetown

• Decision Date: 21 December 1945
• Citation: 191 S.W.2d 403,301 Ky. 241
• Parties: MILLER et al. v. CITY OF GEORGETOWN. UNITED CORPORATION, Inc., v. SAME.
• Court: Kentucky Court of Appeals

191 S.W.2d 403

301 Ky. 241

MILLER et al. v. CITY OF GEORGETOWN.

UNITED CORPORATION, Inc., v. SAME.

Court of Appeals of Kentucky

December 21, 1945

Appeal from Circuit Court, Scott County; W. B. Ardery, Judge.

Separate condemnation proceedings by the City of Georgetown against John Miller and another, and against the United Corporation Inc., to acquire property for a municipal off-street parking lot for automobiles. The proceedings were instituted in the county court. The City of Georgetown appealed to the Circuit Court from the decisions of the county court. From the judgments of the Circuit Court, the defendants in each case appeal.

Affirmed.

McKnight & Shuff, of Georgetown, for appellants.

Fred Lisanby, of Georgetown, for appellee.

REES Chief Justice.

These two appeals have been consolidated since they present the same question for decision. That question is: Has a city of the fourth class authority to acquire property for a municipal parking lot?

The Board of Council of the City of Georgetown adopted an ordinance which contained the following preamble:

'Whereas there are no public or private parking lots for automobiles in Georgetown, and

'Whereas all parking of automobiles is now done on the side of public streets in the city, and the parking of automobiles on said streets is presenting traffic congestions and problems that need to be eliminated and

'Whereas there is need for municipal parking facilities to relieve the city streets from much of the parking of cars thereon and to furnish parking facilities near the business section of said city, and

'Whereas, the following two tracts of land are centrally located near the business section of said city and can be used in connection with other property owned by the city for a municipal parking lot.'

The ordinance then described the two tracts of land. One tract is owned by United Corporation, and fronts on the west side of Court alley a distance of 28 ft. 9 in. and runs back in a western direction between parallel lines a distance of 110 ft., and is bounded on the north by a lot owned by the City of Georgetown. The other tract is owned by John Miller and adjoins the United Corporation lot on the south. The ordinance provided that upon its passage the proper city authorities might, if compensation for the property could not be agreed upon, proceed to condemn it as provided by law. The city authorities were unable to purchase the lots, and on August 3, 1944, condemnation proceedings were instituted in the Scott county court against each of the owners. The petition in each case alleged that the strip of land sought to be acquired was to be used in conjunction with an adjoining lot already owned by the city for a municipal or off-street parking lot for automobiles; that there were no public or private parking lots within the city, and it was necessary to acquire one for that purpose. An answer was filed in each case in which it was alleged that a municipality is without authority to acquire or maintain a parking lot, and that the acquisition or maintenance of a parking lot is not the acquisition or holding of the real estate for municipal purposes. The county court overruled the city's demurrer to the answer and sustained the defendant's demurrer to the petition. The city appealed to the circuit court which reversed the ruling of the county court and sustained the city's demurrer to the answer and overruled the defendant's demurrer to the petition. The defendant in each case has appealed.

The rule in this state is that a municipality possesses only such powers as the Legislature has expressly or impliedly conferred upon it. Commonwealth, Etc. v. Day, 287 Ky. 176, 152 S.W.2d 597; George v. City of Raceland, 279 Ky. 316, 130 S.W.2d 825. As expressed in Herd v. City of Middlesboro, 266 Ky. 488, 99 S.W.2d 458, 459: 'A municipal corporation has only such powers as are expressly granted to it by its charter, or which are necessarily implied or incident to those so granted, or which are indispensable to the declared objects and purposes of the corporation.'

Further along in the opinion it was said: 'But when a particular power has been delegated to a municipal corporation by the Legislature without any express limitations, the extent to which it shall be exercised rests in the discretion of the municipal authorities, and the courts cannot interfere so long as it is exercised in good faith and for municipal purposes. One of the powers indispensable to the purposes of a municipal corporation is the power to provide for the protection of the health, safety, and welfare of its inhabitants.'

KRS 86.110 sets forth the general powers of the board of council of a city of the fourth class. It provides that the city council may purchase, upon a vote of two-thirds of the members of the council, any real estate that it considers necessary for city purposes, and may sell and dispose of any city property upon a similar vote. Subsection 8 provides that the city council may 'declare by ordinance that property is needed for municipal purposes and for the purposes mentioned in subsections (6) and (7) of this section, upon the passage of which ordinance the proper city authorities may, if the compensation for the property cannot be agreed upon, proceed to condemn the property in the manner provided by KRS 416.010 to 416.080.' KRS 86.120 authorizes the city council to license, tax, and regulate vehicles. Subsection 8 of KRS 86.110 does not specifically mention parking lots, but is in general terms and authorizes the city to purchase or condemn real estate which it has declared by ordinance is needed for municipal purposes. In Louisville & N. R. Company v. City of Louisville, 131 Ky. 108, 114 S.W. 743, 745, 24 L.R.A.,N.S., 1213, it was said: 'Although the power of eminent domain is not inherent in municipalities and may not be exercised by them without statutory authority, it is not necessary that the statute should specifically mention streets, alleys, highways, or other purposes for which the municipality may condemn property. The general power of condemnation for appropriate municipal purposes confers the authority to condemn for every necessary municipal purpose.'

Is then the acquisition and use of land by the city for a parking lot a municipal purpose? As said by the court in Nourse v City of Russellville, 257 Ky. 525, 78 S.W.2d 761, 764, when speaking of the powers of a municipality: 'The...