Boone County v. Town of Verona

• Citation: 190 Ky. 430,227 S.W. 804
• Parties: BOONE COUNTY v. TOWN OF VERONA ET AL.
• Decision Date: 08 February 1921
• Court: Court of Appeals of Kentucky

227 S.W. 804

190 Ky. 430

BOONE COUNTY v. TOWN OF VERONA ET AL.

Court of Appeals of Kentucky.

February 8, 1921

Appeal from Circuit Court, Boone County.

Petition by a majority of the legal voters of the Town of Verona to dissolve its charter. From a judgment annulling the charter and dissolving the corporation, Boone County appeals. Judgment affirmed.

B. H Riley, of Burlington, for appellant.

John L Vest, of Walton, for appellees.

HURT C.J.

Verona is a municipal corporation of the sixth class. In pursuance to and in accordance with the provisions of section 3662a Ky. Stats., a majority of the legal voters of the corporation petitioned the circuit court to annul and dissolve its charter, and the notice of the filing of the petition was given as required by the statute supra. There is no contention made but what the proceedings were regular and in accordance with the requirements of the statute. The facts averred in the petition as the cause of the desire of a majority of the voters to dissolve the corporation and annul its charter was that the corporation had ceased to function for several years, and had no board of trustees, nor other officers. The court rendered a judgment in accordance with the prayer of the petition annulling the charter and dissolving the corporation, and adjudged that all of its franchises and powers be discontinued. The only source from which the court could derive authority for its action is to be found in the provisions of the statute (section 3662a supra), as in this state the courts have no inherent authority to dissolve a municipal corporation. Section 3662a is as follows:

"1. A majority of the voters residing in an incorporated town of the sixth class may file a petition asking that its charter be dissolved or annulled.

2. Whenever a petition signed by a majority of the persons entitled to vote living within the boundary of the proposed town is filed in the circuit court clerk's office of the county in which a greater part of the town is located, not less than twenty days before the commencement of the next regular term of said court, the petitioners shall cause notice of the filing of such petition and the object thereof to be published in two issues of some news paper of general circulation published in the county; or, if none, by notices posted up for at least ten days before the commencement of the term. One at the courthouse door and the others at public places within the boundary of the proposed town.

The petition shall set out the metes and bounds of the towns, and the number of voters and inhabitants resident within the boundary thereof, and such other facts as may be thought proper.

3. Defense may be made to the petition by any voter of town, and if a defense is made the court shall hear and determine the same and may render judgment dissolving and annulling the charter.

The pleadings and practice, except as herein provided, shall be the same as in equity cases; and appeal shall be from the judgment, provided the record is filed in the clerk's office of the Court of Appeals twenty days prior to the second term of the Court of Appeals after the rendition of the judgment."

The contention is made for the appellant that the foregoing act of the General Assembly is void, because in violation of certain provisions of the Constitution. A very well-settled principle, which has been continuously adhered to, is that the General Assembly has the authority to enact any legislation which is not prohibited by some provision of the Constitution of the state or of the United States, and in this respect a difference arises between the powers of the General Assembly of the state and the powers of the Congress of the United States. The powers of the latter in legislation are confined to such things as it is authorized by the provisions of the Constitution of the United States to do. Cooley (7th Ed.) p. 241; Griswold v. Hepburn, 2 Duv. 20; Rhea, Treasurer, v. Newman, 153 Ky. 604, 156 S.W. 154, 44 L.R.A. (N. S.) 989; L. & N. R. R. Co. v. Herndon, 126 Ky. 589, 104 S.W. 732, 31 Ky. Law. Rep. 1059; Banks v. Commonwealth, 145 Ky. 800, 141 S.W. 380. While there is no express warrant in the Constitution of the state for the enactment of the legislation contained in the act supra, such warrant is no wise essential to its validity, and hence, if the General Assembly is not prohibited from enacting the legislation by a constitutional provision, it was wholly within its power to do so. Of course, it must be conceded that, if the General Assembly undertakes to make an enactment which the Constitution prohibits, its action is still-born and is without force or effect, and neither invests nor divests any one with or of either rights or powers.

There is no inhibition in the Constitution upon the power of the General Assembly to enact the act supra, unless it is found in sections 27 and 28 of that instrument. Section 27 is as follows:

"The powers of the government of the commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."

Section 28, supra, is as follows:

"No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted."

It is insisted that the act under consideration undertakes to invest the judiciary with powers, and to impose upon it duties which are exclusively legislative in character, and that such action is prohibited by section 28 of the Constitution, supra, which expressly prohibits a judicial officer from exercising a power which properly belongs to the magistracy, which compose the legislative department, unless the legislation which attempts to authorize the exercise of the power in the language of the section supra is "expressly directed or permitted" by the Constitution. There being no provision of the Constitution which expressly directs or permits the courts to annul or dissolve the charters of municipal corporations, nor authorize the legislative department to empower the courts so to do, it is contended that the General Assembly was without power to delegate such authority to the judiciary or its officers. Of the correctness of this contention, as a general rule, there can be no doubt, if the act of the Legislature does in fact attempt to delegate a power properly belonging to the legislative department to the judicial, and undertakes to empower the judge of the circuit court to exercise it, for it necessarily follows that, if the courts and their officers are prohibited from exercising a legislative function, the Legislature is without authority to delegate such power to them. The General Assembly may authorize the courts to exercise judicial functions, but it is without authority to authorize the court to exercise a legislative function, except in the instances wherein the Constitution "expressly directs or permits" it. Neither is there the least doubt but what the creation and enlargement and also the dissolution of municipal corporations are exclusively legislative functions, and may be exercised alone by the legislative department of the government. 19 R.C.L. 705; 12 C.J. 856; 28 Cyc. 250; Hill v. Anderson, 122 Ky. 87, 90 S.W. 1071, 28 Ky. Law Rep. 1032; Boyd v. Chambers, 78 Ky. 140; Norris v. Waco, 57 Tex. 635; Wade v. Richmond, 18 Grat. (Va.) 583; Weeks v. Milwaukee, 10 Wis. 243; Powers v. Wood, 8 Ohio St. 285. Indeed, there is no authority which advances a contrary view; that is, when applied to the real acts which constitute the creation, enlargement, or dissolution of a municipal corporation. The power to create municipal corporations, which are subdivisions of the state for the purposes of government, is held everywhere to be political in its character, and necessarily exercisable by the legislative department alone, and the dissolution of a municipal corporation is no less the exercise of a political power and must be exercised by the legislative department of the government, and is not a matter of judicial cognizance. This general statement of principle does not conflict with the courts' authority, at the suit of the Attorney General, by the direction of the Legislature, to vacate the charter of a municipal corporation, as provided for by section 482 of the Civil Code. The municipal corporations there referred to are such as have essential defects in their organization, and are not corporations de jure, but mere de facto corporations, and assuming to exercise powers and franchises to which they have no right, and the questions the courts are called upon to decide and to adjudge are whether or not the corporations are or are not real corporations, according to the laws upon which their organizations depend, and therefore the functions exercised by the courts in such cases are judicial in character, because the existence of a de jure municipal corporation is invulnerable to any assaults which may be made upon it in the courts. Vanover v. Dunlap, 172 Ky. 679, 189 S.W. 915.

There being no express direction or permission in the Constitution for the courts to exercise the power to dissolve a de jure municipal corporation, it seems clear that the Legislature is without authority to delegate such a legislative function to the courts, and hence the question in the instant case to be determined is whether the act of the General Assembly under consideration has the effect of delegating to the circuit court the legislative function of dissolving a municipal corporation or empowering the court with authority to determine...