Carrithers v. City of Shelbyville

• Decision Date: 23 October 1907
• Citation: 104 S.W. 744,126 Ky. 769
• Parties: CARRITHERS ET AL. v. CITY OF SHELBYVILLE.
• Court: Kentucky Court of Appeals

104 S.W. 744

126 Ky. 769

CARRITHERS ET AL. v. CITY OF SHELBYVILLE.

Court of Appeals of Kentucky.

October 23, 1907

Appeal from Circuit Court, Shelby County.

"To be officially reported."

Action by Mary E. Carrithers and others against the city of Shelbyville. Judgment for defendant, and plaintiffs appeal. Affirmed.

J. C Beckham & Son, for appellants.

P.J Beard, for appellee.

O'REAR C.J.

The city of Shelbyville, one of the old cities of this state, is a city of the fourth class, thrifty and growing. It proposed by proceedings conforming to section 3483, Ky. St. 1903, to enlarge its territory by including within the corporate limits of the city a certain boundary which embraces real property owned by appellants and others; some of the latter being voters. This suit was filed in the circuit court to enjoin the city from proceeding in the matter upon the ground that the statute violates section 1 of the fourteenth amendment to the Constitution of the United States, and is therefore void. The appellants are all women. They, with certain corporations who joined as plaintiffs in the suit in the lower court, own unimproved lands within the territory proposed to be annexed to the city, and which was not within any city or town when the proceedings were begun. The complaint is that to take the lands of appellants into the city will add a burden of municipal taxation without benefit and that, as the statute regulating the procedure for adding to the boundaries of a city discriminates against women and all other persons affected who are not voters, they are not afforded equal protection of the laws, inasmuch as the statute provides that voters only may make defense to the proceedings, if there are voters in the territory to be affected. A demurrer to the petition was sustained, and the plaintiff's prayer for relief was denied by the circuit court.

For the more convenient study of the subject, the existing statute which is the authority for the city's procedure and the subject of appellants' complaint, is set forth at length as follows: "The boundaries of cities of the fourth class shall, until changed as herein provided, remain as now established by law. Whenever it shall be deemed desirable to annex any territory to a city in this class, or to reduce the boundaries thereof, the same may be done in the following manner: The board of council of such city shall, by ordinance, accurately define the boundary of the territory proposed to be annexed or stricken off. Such ordinance shall be published for not less than three weeks in a newspaper published in such city or county; if there be no newspaper published in the city or county, the ordinance shall be advertised by handbills, to be posted for at least fifteen days at four or more public places in the city, and at the same number of the most public places within the territory proposed to be annexed or stricken off. Within thirty days after the adoption, publication and advertisement of such ordinance, a petition shall be filed in the circuit court of the county within which said city may be situated, in the name and on behalf of the city, setting forth the passage, publication and advertisement of such ordinance, the object and purposes thereof, together with an accurate description by metes and bounds of the territory proposed to be annexed to or stricken from the city, and praying for a judgment of the court to annex said territory to or strike same from the city, as the object may be. The said petition shall be filed not less than twenty days before the first day of the next succeeding term of the circuit court in that county. Notice of the filing of the same shall be given in the same manner as provided herein for notice of the passage of said ordinance. If no defense be made at the first term of the court after the filing of said petition and notice of same as herein provided and the court shall make no order for granting further time for making defense the court shall render a judgment annexing or striking off the proposed territory as the objects of the proceedings may be. But at the first term of the circuit court or within the time fixed by the court by its order any one or more of the resident voters of the territory proposed to be annexed or stricken off may file a defense in said proceedings setting forth the reasons why such territory, or any part thereof, should not be annexed to the city, or why the limits of the city should not be reduced. The case shall be tried by the court without the intervention of a jury. If the court, upon hearing, be satisfied that less than a majority of the resident voters of the territory sought to be annexed or stricken off have remonstrated against the proposed extension or reduction, and that the proposed extension or reduction of the limits of the city, as the case may be, will be for the interest of the city, and will cause no material injury to the owners of real estate in the limits of the proposed extension or reduction, it shall so find, and the proposed extension or reduction shall be decreed or adjudged. But if the court shall find that a majority or more of the resident voters in the territory to be affected or the owner or owners of said property, if there be no resident voters, remonstrated against such change, and that said change will cause material injury to the owners of real estate in the limits of the proposed extension or reduction, it shall so find, and said extension or reduction shall be denied. If the judgment of the court is adverse to the proposed change, no further effort to annex or strike off the territory so proposed shall be made within two years after the entering of the judgment. Costs shall follow the judgment, and no appeal shall lie from the judgment of the circuit court. If the judgment in such proceedings be in favor of the city, it shall be certified by the clerk of the court to the board of council and entered on the records of the board, and the board shall thereupon, by ordinance, annex to or strike from the city the territory described in the judgment: Provided, the circuit court shall not have jurisdiction of such proceedings, unless the required publication or advertisement of the ordinance proposing the extension or reduction of the limits of the city contains notice of the proposed proceedings in such court, proof of which publication or advertisement may be made by affidavit filed in the proceedings: Provided, however, that the provisions of this act shall not be construed as interfering with the rights of any litigant in or growing out of any action now pending in any court of this commonwealth under the act to which this is amendment." This section is the statute amended as of March 22, 1902. Before that amendment other features existed which have been eliminated. The precise question here presented has not heretofore come before this court, nor, so far as we have been able to find, before any other court for decision. Certain features of the question have been passed upon by this and other Supreme Courts, which will be noticed in the course of the opinion.

Of course, a woman is a person, and so is a corporation ( Santa Clara County v. Southern Pacific R. Co. [ C C.] 18 F. 385), within the contemplation of the fourteenth amendment to the federal Constitution. If either is denied the equal protection of the law by following the statutory proceeding for annexing territory to a city, then the statute must be declared invalid. A very brief study of the nature of our municipal corporations will materially aid in the determination of the question presented. Our system of city government is adopted from the English, which was probably fashioned upon the Teutonic town. In both the former the will and welfare of the landowner were consulted. Indeed, the Teuton ceorl and the English burgher were deemed the sole beneficiaries of the municipal privileges. Green's Short Hist. Eng. People, § 1, p. 3. After the Conquest, king and the nobility overbore the simple freedom of the towns, and sold it back to the inhabitants in consideration of revenues paid into the royal treasury. The liberties, or privileges so ceded to the body of the burghers, were evidenced by a grant in the nature of a charter, whence was derived the corporate character of the grantee, the collective citizens as a town. The original idea seems to have been just the reverse of that obtaining at this day. Then the towns were supposed to be conducted for the personal benefit of its citizens only, while now it is an arm of the state government, governing in its name, and by its authority solely, for the benefit of the state. Naturally enough no town was then set up as a corporation involuntarily, or save by the request of the inhabitants concerned. Acceptance was therefore essential to make operative a charter granted by the king. 1 Kyd. Corp. 61. He had no power to impose political obligations on any person or community, except in the form of conditions, nor to compel the acceptance of any charter. President, etc., v. Society, etc., 24 N. J. Law, 385. When Parliament became...