City of Bardstown v. Hurst

• Decision Date: 29 September 1905
• Parties: CITY OF BARDSTOWN v. HURST. [*]
• Court: Kentucky Court of Appeals

89 S.W. 147

121 Ky. 119

CITY OF BARDSTOWN v. HURST. ^[*]

Court of Appeals of Kentucky.

September 29, 1905

Appeal from Circuit Court, Nelson County.

"To be officially reported."

Petition by Monroe Hurst against the city of Bardstown for a writ of prohibition to prevent the judge of the police court from taking jurisdiction of an offense. From the judgment granting the writ, defendant appeals. Affirmed.

R. C Cherry, for appellant.

S. G Fulton, for appellee.

SETTLE J.

The council of appellant, city of Bardstown, desiring to annex to its corporate limits certain contiguous territory upon which is situated its waterworks and reservoir, on December 13 1904, enacted an ordinance defining accurately the boundary of the territory proposed to be annexed. Small parcels of the territory in question are owned by J. R. Barber, K. C Barber, and the Louisville & Nashville Railroad Company, respectively; the remainder, by the city. After the enactment by the city council of the ordinance mentioned, it was given to the Record Printing Company, publishers of a weekly newspaper of the city known as the "Nelson Record," to be published in four issues of that paper; there being no daily newspaper published in Bardstown. The Nelson Record was issued on Thursday of each week, and as the ordinance given it for publication did not reach its office until Wednesday, the day following its adoption by the council and the day before the usual time for the weekly issue of the paper, there was not time to set it in type or publish it that week. It did, however, appear in the next issue of the paper, the following week; that is, on December 22d. There was no issue of the paper the succeeding week embracing the Christmas holidays; it being the custom of weekly newspapers in Kentucky not to issue during that season. Consequently no publication of the ordinance was made that week. On January 2, 1905, and before the day arrived for the next regular issue of the Nelson Record, which, if issued, would have contained the second publication of the ordinance, the office, plant, and type of its owner, the Record Printing Company, were all destroyed by fire. After the fire the Nelson Record and its good will were purchased by the Standard Publishing Company and the Nelson Record was no more published. But the Standard Publishing Company then began the publication in Bardstown of a weekly newspaper called the "Kentucky Standard," and in this paper the ordinance, which had received but one publication in the Nelson Record, was published in four weekly issues consecutively. Thus it appears that the ordinance was published in five issues of a weekly newspaper, between December 13, 1904, and February 14, 1905. On the last-named date appellant city council enacted another ordinance, whereby the territory defined by the first ordinance was declared annexed to the city. On January 12, 1905, which was 31 days after the enactment by the city council of the first ordinance, but before it had been published in four issues of a weekly newspaper, and more than 30 days before the enactment of the second ordinance, J. R. Barber and K. C. Barber, freeholders and residents of the territory sought to be annexed, filed in the Nelson circuit court a petition resisting the proposed annexation. Appellant city council, in enacting the second or annexing ordinance, ignored the petition of remonstrance in the circuit court, upon the ground that it had not been filed within 30 days next after the passage of the first ordinance, although the circuit court had not then taken action upon the objections to the annexing of the additional territory raised by the petition, and, so far as shown by the record, has not yet done so. After the passage of the second ordinance the appellee, Monroe Hurst, was arrested for a petty offense against the laws of the city of Bardstown, alleged to have been committed in the newly annexed territory, and, upon being arraigned therefor in its police court, denied the jurisdiction of that court, upon the ground that the action of the city council in annexing the territory in question was illegal, and its ordinances in regard thereto invalid, in consequence of which the offense of which he stood charged had not been committed within the corporate limits of the city. He therefore petitioned the judge of the circuit court for a writ of prohibition to prevent the judge of the police court from taking jurisdiction of his person or the offense charged. Upon hearing the circuit judge sustained appellee's contention and granted the writ of prohibition, and from that judgment the city has appealed.

Bardstown is a city of the fifth class, and therefore, in the matter of enlarging or reducing its corporate boundary, the powers of the city council are defined by sections 3611 and 3612, Ky St. 1903. Section 3611 provides: "Whenever it is deemed desirable to annex any territory to any city of this class, or to reduce the boundaries thereof, the city council thereof may enact an ordinance defining accurately the boundary of the territory proposed to be annexed or stricken off, and...