Pfeiffer v. City of Louisville

• Decision Date: 23 March 1951
• Citation: Pfeiffer v. City of Louisville, 240 S.W.2d 560 (Ky. 1951)
• Parties: PFEIFFER et al. v. CITY OF LOUISVILLE. TOWN OF ABERDEEN VILLAGE et al. v. CITY OF LOUISVILLE et al.
• Court: Supreme Court of Kentucky

Page 560

240 S.W.2d 560

PFEIFFER et al. v. CITY OF LOUISVILLE.

TOWN OF ABERDEEN VILLAGE et al. v. CITY OF LOUISVILLE et al.

Court of Appeals of Kentucky.

March 23, 1951.

As Modified and Extended on Denial of Rehearing June 22, 1951.

Stuart E. Lampe and Ropke, Goldstein, Lampe & Poynter, Louisville, for appellants.

Gilbert Burnett, Robert W. Meagher, Louisville, for appellees.

MILLIKEN, Justice.

These two appeals involve the annexation program of the City of Louisville and the legal existence of the Town of Aberdeen Village. The Pfeiffer case filed in 1946 represents a remonstrance of representative citizens against Louisville's proposal to annex their territory which is now included in the Town of Aberdeen Village. The Aberdeen Village case filed in 1950 seeks a determination of the right of the Town of Aberdeen Village or the City of Louisville to tax the property in the Town of Aberdeen Village over which Louisville asserts authority on the theory that it has been annexed.

Louisville passed a proposal ordinance on April 25, 1946, denominated Ordinance No. 53, Series 1946, pursuant to KRS 81.100, by which it proposed to annex territory including what is now the Town of Aberdeen Village but which was unincorporated territory at that time. If no protest had been made within thirty days of the enactment of the proposal ordinance, Louisville could have proceeded with annexation of the territory merely by passing another ordinance. KRS 81.100. Citizens of the Aberdeen area promptly took double-barreled action to avert annexation: they filed a remonstrance action (Pfeiffer) on May 22, 1946, under KRS 81.110, and they instituted proceedings to incorporate their community under KRS 81.050. The Aberdeen area was adjudged incorporated on June 25, 1946, and, apparently, Louisville's annexation proposal would have to run the gauntlet of an Aberdeen election under KRS 81.120, the section of the statutes regulating the annexation of incorporated territory by the City of Louisville.

On the same day the Pfeiffer suit was filed in the Jefferson Circuit Court, Mr. Loeffler and other representative citizens of the territory which Louisville proposed to annex filed their remonstrance. Their interest was not confined to the Aberdeen area as such, but included it. The Loeffler case went to trial before a jury, in accordance with KRS 81.110(2), on March 25, 1947, and the jury found in favor of Louisville's proposal to annex the territory. An appeal was taken to this court, and the judgment of the trial court was affirmed. Loeffler v. City of Louisville, November, 1948, 308 Ky. 629, 215 S.W.2d 535. Thereafter, on April 25, 1950, Louisville adopted its final ordinance annexing all the territory in conformity with its proposal ordinance of four years before, on April 25, 1946.

Did the incorporation of the Town of Aberdeen Village after Louisville's proposal ordinance was enacted compel Louisville to complete its annexation proceeding under KRS 81.120 which requires a vote of approval by the electors of the town to be annexed, or could Louisville continue the annexation proceeding under KRS 81.100 regulating the annexation of unincorporated territory where the electoral consent of the citizenry of the area is not required? Is the decision in the Loeffler case determinative of the Pfeiffer case? These are the pivotal questions to be answered.

Louisville attacked collaterally the incorporation of the Town of Aberdeen Village upon the theory that its proposal ordinance of April, 1946, deprived the citizens of the Aberdeen area of their privilege of incorporating, and the trial court decided that the incorporation of Aberdeen Village 'had no operative effect upon the City of Louisville's annexation proposal as embraced in Ordinance No. 53, Series 1946, * * *' and the officials and incorporators of the Town of Aberdeen Village had acted at their peril in incorporating and administering the Town.

The judgment incorporating the Town of Aberdeen Village was not a nullity. The court was given no discretion by the statute, KRS 81.060, concerning the establishment of a town providing the jurisdictional facts were established in the proceedings requesting incorporation. Such facts were established in the action to incorporate Aberdeen Village so the court automatically granted the prayer as it was required to do by the statute. The advantages of incorporation are too well known to require enumeration, and an aspiring community should not be denied them. Certainly, its power to attain them should not be reposed in the political hands of another community, in this instance, Louisville. The enactment of the proposal ordinance by Louisville did not preclude Aberdeen Village from incorporating pending the ultimate decision of Louisville as to annexation. For us to hold otherwise would deny the citizens of an unincorporated area control of a means of collective action usually essential to effecting public improvements and adequately protecting the general health and welfare.

However, the incorporation of Aberdeen Village after the enactment of Louisville's proposal ordinance was not an added obstacle to the annexation plan of Louisville, for the incorporation was accomplished with full knowledge of the Louisville proposal. Until and unless abandoned formally or impliedly, the proposal ordinance staked Louisville's prior claim to annex the Aberdeen area as unincorporated territory under KRS 81.100. See 62 C.J.S., Municipal Corporations, Sec. 85, Note 41. Incorporation is not a defense to annexation made available to residents of unincorporated territory under KRS 81.110. By KRS 81.110 the citizens of unincorporated territory have the right to remonstrate against the proposed annexation by Louisville and to have a jury decide the issue. The right to a jury trial in the premises is confined to remonstrances against annexation proposals of Louisville; in the statutes regulating remonstrances against annexation of unincorporated territory by all other municipalities in the state, the court determines the issue. KRS 81.140(3), 81.190(3), 81.220(2), 81.230(2), 81.240(2). Since the jury in the Loeffler case determined the issues there presented in favor of Louisville, approved by us in 308 Ky. 629, 215 S.W.2d 535, is that decisive of the remonstrance of the Aberdeen area in the Pfeiffer case?

Before attempting to determine the effect of the Loeffler decision upon the present litigation, reference to the governing statute should prove helpful. The applicable portions of that statute, KRS 81.110, are as follows:

'(1) Within thirty days after the enactment of an ordinance proposing to annex unincorporated territory to a first-class city, * * * one or more residents or freeholders of the territory proposed to be annexed * * * may file a petition in the circuit court of the county, setting forth the reasons why the territory or any part of it should not be annexed, * * *.

'(2) If the jury finds, upon a hearing, that less than seventy-five percent of the freeholders of the territory to be annexed * * * have remonstrated, and that the adding * * * of the territory will be for the interest of the city, and will cause no manifest injury to the persons owning real estate in the territory sought to be annexed * * *, the annexation * * * shall be approved and become final. If the jury finds that seventy-five percent or more of the resident freeholders of the territory sought to be annexed * * * have remonstrated, the annexation * * * shall not take place, unless the jury finds from the evidence that a failure to annex * * * will materially retard the prosperity of the city, and of the owners and inhabitants of the territory sought to be annexed * * *, in which case the annexation * * * shall take place notwithstanding the remonstrance.'

The statute authorizes a class or representative suit by 'one or more residents or freeholders of the territory proposed to be annexed' to show why 'the territory or any part of it should not be annexed'. Regardless of the percentage of remonstrants, the real issue before the jury in these cases was the effect of annexation or a failure to annex upon the prosperity and welfare of...