Garner v. City of Lexington

• Decision Date: 25 October 1957
• Citation: 306 S.W.2d 305
• Parties: James H. GARNER et al., Appellants, v. CITY OF LEXINGTON, a Municipal Corporation, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 305

306 S.W.2d 305

James H. GARNER et al., Appellants, v. CITY OF LEXINGTON, a Municipal Corporation, Appellees.

Court of Appeals of Kentucky.

Oct. 25, 1957.

Frank S. Ginocchio, Wheeler B. Boone, Lexington, for appellants.

Stoll, Keenon & Park, Lexington, for appellees.

CLAY, Commissioner.

We have before us a phase of an annexation proceeding. The plaintiffs' complaint, attacking as void an ordinance proposing annexation, was dismissed.

By ordinance enacted in August 1955, the City of Lexington proposed to annex an adjacent area of unincorporated territory. Plaintiffs, residents and freeholders of that territory, timely filed a remonstrance suit objecting to the proposed annexation as authorized by KRS 81.140 (under the procedure outlined in KRS 81.110).

Approximately one year later in 1956, while this remonstrance suit was pending, the City enacted a new ordinance wherein it proposed to annex a part of the original territory owned by the International Business Machines Company. IBM apparently consented to the annexation of its property. The 1956 ordinance specifically provided the earlier ordinance was not repealed or affected as to 'other territory described therein'. It is this last ordinance which is attacked in the proceeding before us.

Due to the faulty description in the 1956 ordinance, there is some dispute concerning the territory encompassed, but for our purposes we will assume plaintiffs do not own any part of the property sought to be annexed by this ordinance.

Both the plaintiffs and the City moved for summary judgment. The principal contention of the City is that under KRS 81.110 the proposed annexation of the IBM property cannot be contested by the plaintiffs because they are not 'residents or freeholders of the territory proposed to be annexed'. On the other hand, the plaintiffs assert they are entitled to a summary judgment on the ground the ordinance proposing to annex the IBM property is void. Their position is the City legislative body had no power to annex a part of the larger territory, since the annexation of all the territory and each of its parts was within the exclusive jurisdiction of the Fayette Circuit Court by reason of the original remonstrance suit. Other issues are raised, but these contentions present the principal question in the case.

We do not find merit in the basic argument of the City that the plaintiffs have no right to challenge this ordinance. The contention is founded on a misconception of the nature of this suit. It is not a remonstrance suit under KRS 81.110. It does not raise the issue of whether or not the City had sufficient reason to annex the IBM property. The proceeding challenges the ordinance on the ground the City has no power to proceed in this manner.

The validity of an annexation ordinance may be questioned independently of a remonstrance suit. See KRS 81.140; City of Bardstown v. Hurst, 121 Ky. 119, 89 S.W. 147, 724; City of Newport v. Glazier, 175 Ky. 608, 194 S.W. 771. This action, though in the form of an independent one, is actually a direct attack upon the ordinance in a proceeding ancillary to the original remonstrance suit. As a matter of fact, the proceeding simply seeks to abate a course of procedure taken by the City to annex property subject to the jurisdiction of the Fayette Circuit Court. Not only could the plaintiffs come into court to raise the issue presented, but they were already in court on the question of whether or not this IBM property should be annexed by virtue of the original ordinance and the remonstrance suit. We conclude the plaintiffs may properly challenge the 1956 ordinance.

This brings us to the fundamental question in the case. May a city of the second class, having proposed by ordinance the annexation of unincorporated territory, and while the circuit court has jurisdiction of the proposal by reason of a pending remonstrance suit, undertake by independent ordinance to annex a part of that territory?

It should be noted that the ordinance in issue only proposes the annexation of the IBM property. From the oral argument we understand that the City has treated this property as annexed territory, but we do not have before us a final ordinance prescribed by KRS 81.100 making effective the proposed annexation, nor do we have before us any actions taken by the City subsequent to the 1956 ordinance. Our question is whether this ordinance was effective to initiate the annexation of the IBM property solely by the legislative process.

The procedure for the annexation of unincorporated territory by a city of the second class is outlined in KRS 81.110 and 81.140. The City by ordinance may propose annexation. The residents or freeholders of the territory may file a remonstrance suit protesting the annexation. The remonstrance suit shall be tried by the judge of the circuit court. In the proceeding the circuit court may decree 'that only a part or parts of the territory proposed to be annexed shall be annexed'. KRS 81.140(5). After the court acts, the city legislative body may thereupon annex the territory authorized by the judgment.

The procedure prescribed by the statutes takes no cognizance of a secondary ordinance such as the one under attack. Plaintiffs contend that it violates the jurisdiction of the circuit court over this territory. We agree.

In City of Bardstown v. Hurst, 121 Ky. 119, 89 S.W. 147, 724, above cited, the legislative body of the City of Bardstown had enacted an ordinance proposing annexation of certain territory. A remonstrance suit was filed 31 days after the enactment of this ordinance. The City, conceiving that the suit was filed too late (the time allowed being 30 days) thereafter enacted a second ordinance declaring the territory annexed. This Court decided...