City of Lebanon v. Knott

• Decision Date: 17 March 1903
• Citation: 72 S.W. 790
• Parties: CITY OF LEBANON et al. v. KNOTT et al.
• Court: Kentucky Court of Appeals

72 S.W. 790

CITY OF LEBANON et al. v. KNOTT et al.

Court of Appeals of Kentucky.

March 17, 1903

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Mandamus by J. M. Knott and others against the city of Lebanon and others, to compel the city council to pass an ordinance for the striking of certain territory from the city. From a decree granting the writ, the city appeals. Affirmed.

H. S McElroy, for appellant.

Jno. McChord, for appellees.

SETTLE J.

Section 3483, Ky. St., provides a method of adding to, or striking from, the boundaries of cities of the fourth class. The language of the statute on this subject is as follows "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, either upon their own motion, or if requested to do so by a written petition of at least twenty five voters and resident taxpayers of the city, or residing within the boundary to be added or stricken therefrom, shall pass the ordinance in conformity with the request of such taxpayers. *** 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, or in the name of one or more of said petitioning taxpayers, 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 remaining portions of the section provide the manner in which the subsequent proceedings as to the trial in the circuit court shall be conducted, and authorizes any one or more of the resident voters of the territory proposed to be annexed or stricken off to file a defense in the proceedings, setting forth such reasons as may properly be urged in resistance thereof.

It appears that the appellees, J. M. Knott and others, pursuant to the statute mentioned, presented to the Lebanon board of councilmen, on July 4, 1901, a petition signed by more than 25 voters and resident taxpayers of the city, asking of it the passage of an ordinance and publication of same, defining a portion of the corporate limits of the city described in the petition by metes and bounds, which was proposed by the petitioners to be stricken from the boundary thereof. For some reason best known to its members, the council delayed action upon the petition, and demand was again made for the enactment of the ordinance, which was refused. Thereupon appellees instituted this action in the Marion circuit court for a mandamus to compel the council to comply with appellees' petition and request.

The answer filed by the board of councilmen contains three paragraphs, the first being a traverse of the petition, and an averment that it does not conform to the statute. The second paragraph avers that the city has a large bonded indebtedness, incurred for waterworks, and that many of the petitioners for the passage of the ordinance received special privileges for the use of water, and that the bonds for the construction of the waterworks were issued at the request of many of the petitioners. The third paragraph avers that within two years last past the city council, at the instance of appellees, duly enacted an ordinance accurately...