Engle v. Miller

• Citation: 303 Ky. 731
• Parties: Engle et al. v. Miller.
• Decision Date: 17 January 1947
• Court: United States State Supreme Court (Kentucky)

303 Ky. 731

Engle et al. v. Miller.

Court of Appeals of Kentucky. In Court of Appeals.

January 17, 1947.

1. Courts. — The Court of Appeals has original jurisdiction under the Constitution where circuit court is proceeding without jurisdiction, is proceeding erroneously within jurisdiction, and where there is no adequate remedy by appeal and a great injustice or irreparable injury will result unless court is restrained or directed to do something affirmatively. Const. sec. 110.

2. Appeal and Error. — The Legislature has the power to deny a right of appeal. Const. sec. 110.

3. Courts. — The mere fact that the constitutionality of a statute is involved, does not of itself give a right of appeal if amount involved is insufficient. KRS 21.060, 81.060; Civil Code of Practice, sec. 734.

4. Municipal Corporations. — Statute providing that circuit court should declare the establishment of a municipality when certain facts are shown to exist, limits the court's judicial discretion to the finding whether such conditions exist. KRS 81.010 et seq.

5. Municipal Corporations. — Provision of act relating to incorporations of cities and towns, that no appeal shall lie from the judgment, relates to judgment that specific conditions essential to court's declaration of the establishment of a municipality, exist or do not exist, and provision therefore will not be strictly construed. KRS 81.060 (4).

6. Courts. — Proposed judgment of circuit court in proceedings for incorporation of community as a municipal corporation that proceedings would not be heard on the merits because of alleged unconstitutionality of statute under which proceedings were brought, would be an appealable judgment when it became final, and therefore aggrieved parties were not entitled to maintain an original action in the Court of Appeals against the circuit court for a writ of prohibition and a writ of mandamus. KRS 81.010 et seq., 81.050; Const. sec. 2.

Original action by James R. Engle and others against W. Scott Miller, judge of the chancery branch, second division, of the Jefferson Circuit Court, for a writ prohibiting the entering of any judgment

decreeing any part of certain act unconstitutional and for a writ of mandamus directing respondent to set case for hearing on certain questions.

Franklin P. Hays and Skaggs, Hays & Fahey for petitioners.

H. Bemis Lawrence, Lawrence S. Grauman and James T. Robertson for respondent.

Before W. Scott Miller, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Dismissing petition.

The General Assembly, at its 1946 Session, amended several sections of Chapter 81 of the Revised Statutes relating to the incorporation of cities and towns. Chapter 42, Acts of 1946. But the provision of many years standing that a Circuit Court should declare the establishment of a municipality when certain facts were shown was re-enacted. James R. Engle and two others, for themselves and 1,001 other residents of the St. Matthews community, which is contiguous to Louisville, instituted proceedings to have it incorporated. Three different groups filed answers in objection and challenged the constitutionality of the Act upon several grounds. The court expressed the opinion that Section 4, which authorizes a proceeding for incorporation to be maintained either by 500 or a majority of the voters residing within the boundary of the proposed city, whichever is the less, violates Section 2 of the Constitution prohibiting the exercise of arbitrary power by the Legislature. The court, therefore, declined to set the case for a hearing on the merits. The defendants tendered a draft of a consistent judgment, and moved that it be entered. Upon objection, the court directed that it be endorsed as tendered; but stated that the tendered judgment would not be signed until a certain date in order to enable the petitioners to seek a writ of prohibition or mandamus in this court.

Thereupon, Engle et al. filed this original action in this court against the Honorable W. Scott Miller, Judge of the Chancery Branch, Second Division, of the Jefferson Circuit Court. They prayed for a writ prohibiting the entering of any judgment decreeing that any part of the Act is unconstitutional, and for a writ of mandamus directing the respondent to set the case for hearing upon the questions of whether the population within the described boundary is sufficient and the proper notice had been given or publication made. This method of seeking a review of the chancellor's decision is thought to be necessary...