City of Lexington v. Kentucky Chautauqua Assembly

• Decision Date: 10 February 1903
• Citation: 114 Ky. 781,71 S.W. 943
• Parties: CITY OF LEXINGTON et al. v. KENTUCKY CHAUTAUQUA ASSEMBLY.
• Court: Kentucky Court of Appeals

71 S.W. 943

114 Ky. 781

CITY OF LEXINGTON et al. v. KENTUCKY CHAUTAUQUA ASSEMBLY.

Court of Appeals of Kentucky.

February 10, 1903

Appeal from circuit court, Fayette county.

"To be officially reported."

Action by the Kentucky Chautauqua Assembly against the city of Lexington and another. From a judgment overruling a general demurrer to plaintiff's petition, defendants appeal. Affirmed.

W. S Bronston, for appellants.

Morton Darnall & Wilson and J. H. Beauchamp, for appellee.

BURNAM C.J.

The appellant the city of Lexington has appealed in this case from a judgment of the Fayette circuit court overruling a general demurrer to the petition of appellee in a suit brought to require the defendant H. T. Duncan, as mayor, to carry out a contract made with the city council of Lexington for the purchase of Woodland Park. The facts alleged in the petition and conceded by the demurrer to be true are that the Kentucky Chautauqua Assembly, a corporation, through its president, proposed in writing to H. T. Duncan, mayor of the city, on the -- day of September, 1902, to sell to the city the grounds of the company known as "Woodland Park," for the purpose of a public park, for the sum of $38,000, which was to be paid within a reasonable time after the city of Lexington should be authorized to make the purchase under the provisions of the charter of the city, but not later than February 1, 1903; that this proposition was duly submitted by the mayor to the council of the city, who on the 11th of September, by an ordinance, authorized the mayor to submit to the voters of the city of Lexington, at an election to be held for that purpose, the question of accepting the proposition and issuing bonds sufficient to pay therefor the sum of $38,000; that pursuant to the ordinance an election was duly held, after giving the notice required by the statute, on the 4th of November, 1902, the same being the day on which the regular annual election was held; and that at this election 1,601 voters voted in favor of the purchase and 638 against it. More than two-thirds of the entire number of votes so cast were in favor of the proposition, which vote was duly ascertained by the board of election commissioners of Fayette county on or about the 10th day of November, 1902, and so certified to the general council of the city of Lexington, and to H. T. Duncan mayor of the city; that the general council thereupon authorized the city solicitor of the city to institute legal proceedings to test the validity of the bonds authorized by the vote before placing them upon the market; and plaintiff, in conformity with their proposition to sell, executed and tendered to the city, through its mayor, a sufficient deed to the land, and demanded the payment of the contract price. It is further alleged that the assessed value of the taxable property of the city, previous to incurring the indebtedness was $17,635,916.32; that the rate of taxation fixed by the city for the fiscal year in which the indebtedness was incurred was $1.16 2/3 per hundred. All steps looking to the consummation of the agreement by the city to purchase the property seem to be in strict conformity with the constitutional and statutory provisions applying thereto. The whole question, at last, is one of power in the council to make the purchase; for, if they had the power, it will not be contended that their discretion, judgment, or prudence in making it, if honestly exercised, can be controlled or revised by the courts.

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