Board of Park Com'rs of Louisville v. Du Pont

• Decision Date: 02 May 1901
• Citation: 110 Ky. 743,62 S.W. 891
• Parties: BOARD OF PARK COM'RS OF LOUISVILLE v. DU PONT et al. [1]
• Court: Kentucky Court of Appeals

62 S.W. 891

110 Ky. 743

BOARD OF PARK COM'RS OF LOUISVILLE v. DU PONT et al. ^[1]

Court of Appeals of Kentucky.

May 2, 1901

Guffy J., dissenting.

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Proceeding by the board of park commissioners of Louisville against T C. Du Pont and others to condemn property. Judgment for defendants, and plaintiff appeals. Reversed.

H. L Stone, for appellant.

H. R Phillips, Humphrey & Burnett, and J. T. O'Neal, for appellees.

PAYNTER J.

The legislature passed "An act to provide for the establishment of public parks in and adjacent to the city of Louisville, Kentucky, and the improvement and management of the same," which was approved May 6, 1890. 3 Acts 1889-1890, p. 267. The act authorized the condemnation of property for park purposes, and specifically provided how a proceeding should be instituted and conducted to accomplish that purpose. The legislature passed "An act for the government of cities of the first class," which was approved July 1, 1893. Subdivision 8 of that act relates to parks, and contains 20 sections, which are sections 2840-2859, inclusive, of the Kentucky Statutes. It is unnecessary to enumerate the various provisions of subdivision 8. It is sufficient to say that it provides for a board of park commissioners, how they shall be elected, fixes their compensation, designates the power conferred upon them, etc. The entire care, management, and custody of the parks and grounds used for park purposes is committed to the park commissioners, and they can make contracts, sue, and be sued. The board of park commissioners, being of the opinion that it had a right to condemn land for park purposes, passed a resolution looking to the condemnation of the property described in these proceedings. This action was instituted by filing a petition in the law and equity division of the Jefferson circuit court, and in which petition, as amended, it is averred that that part of the act of 1890 establishing the board of park commissioners which prescribed the course of procedure to condemn property for park purposes was in force, not being repealed by the act of 1893 for the government of cities of the first class. It is claimed that the act of 1893 repealed that part of the act of 1890 which provided a course of procedure for the condemnation of property for park purposes. Therefore it is claimed that, notwithstanding the right to condemn was conferred, there being no course of procedure provided, the board of park commissioners cannot exercise the right conferred upon it by the act, and the court has no jurisdiction to condemn property. The court below, being of that opinion, sustained a demurrer to the petition.

Section 2852, Ky. St., reads as follows: "Whenever, in the opinion of the board, property shall be needed for any of the purposes herein contemplated, either within or beyond the boundaries of the city, and within the county in which such city is situated, the board may, by resolution reciting such need, order the condemnation of such property, and proceeding for such condemnation shall be had in accordance with the provisions of sections 99, 100, 101, 102 and 103 of the act for government of cities of the first class. If any member of the board be the owner of or interested in any property necessary, in the opinion of a majority of the other members of the board, to be taken for park purposes, then proceeding to acquire such property shall be by condemnation, and such facts of ownership or interest of such members, and the opinion of the majority of his colleagues and to the necessity for condemnation, shall be fully set forth in the petition." Sections 100- 103 correspond to sections 2861-2864, Ky. St., and the reading of which show they have no relation whatever to public parks, but to the board of public safety. They do not throw any light upon the question here involved, but the reading of which show that the legislature made a mistake in making any reference to them, as they do not relate to the subject of parks. Section 99, referred to, is section 2831, Ky. St., which reads as follows: "Whenever property shall be needed for appropriate municipal purposes, either within the boundaries of the city or the county, the board of public works may, with the consent of the mayor, if the amount be under two thousand dollars, order the condemnation of such property; and if the amount be over two thousand dollars, may, with the consent of the mayor and the general council, order the condemnation of such property." That section has no reference to the condemnation of property for park purposes, but to property needed for appropriate municipal purposes. The condemnation provided for is to be made through the instrumentality of the board of public works, with the consent of the mayor, or the consent of the general council, depending upon the value of the property to be condemned. The language of that section shows it has no reference to the condemnation of land for park purposes. If there was a doubt upon the subject, subdivision 8, relating to parks, shows that the land for park purposes is to be acquired through the instrumentality of the board of park commissioners. The initiatory step to be taken for the condemnation of property for park purposes is (section 2852) by a resolution of the board of park commissioners reciting such need and ordering the condemnation of the property desired. It would be attributing to the legislature a lack of capacity to discharge its duty to say that by one section of the act it conferred the right upon the board of public works, with the consent of the mayor or general council, to condemn property for park purposes, and in another section to confer the right upon the board of park commissioners to have property for that purpose condemned. To hold that section 2831 relates alone to the condemnation of property for appropriate municipal purposes other than parks gives to it a meaning which accords with the language of it, and at the same time recognizes that section 2852 relates to the condemnation of property alone for park purposes; thus holding the sections are consistent with each other, and thus giving a meaning to each. Subdivision 8 of the act for the government of cities of the first class purports to be a law for the acquisition and control of parks by the board of park commissioners. It provides that they may be acquired by purchase, gift, or condemnation. It also provides how the money shall be raised for acquiring and keeping up the parks. Much of this subdivision is taken from the act of 1890, creating the board of park commissioners, etc. That part of the act of 1890 specifically providing the method of condemnation of property for park purposes is omitted from subdivision 8 of the act of 1893. We cannot conclude that the legislature intended to retain these provisions of the act of 1893, when so much of that act was retained, as we have said, and no reference made to the omitted sections. It is evident the legislature intended that part of the act of 1893 relating to parks should be a complete law upon the subject, thus evidencing an intention to omit that part of the act of 1890 relating to the details of condemnatory proceedings.

Section 2852, Ky. St., quoted above, authorized the board of park commissioners to condemn land for park purposes, and that section recognizes that the proceedings shall be commenced by a petition. So the act confers the right to condemn...