Roberts v. City of Louisville

• Decision Date: 08 October 1891
• Parties: Roberts et al. v. City of Louisville et al.
• Court: Kentucky Court of Appeals

17 S.W. 216

92 Ky. 95

Roberts et al. v. City of Louisville et al.

Court of Appeals of Kentucky.

October 8, 1891

Appeal from Louisville chancery court.

"To be officially reported."

Proceeding by injunction at the suit of Edward Roberts and others against the city of Louisville and the mayor and general council of said city, to restrain the illegal disposal of wharfage property. Judgment dismissing the proceedings. Plaintiffs appeal. Reversed.

Lewis J.

There was introduced in the general council of the city of Louisville, referred to a joint committee of the board of aldermen and board of councilmen, and a report agreed, by a majority of that committee, to be made in favor of passage of the following ordinance: "That the mayor be and he is hereby authorized to convey by deed of special warranty to the commissioners of the sinking fund of the city of Louisville all of the real property fronting on the Ohio river acquired and held by the city for wharf purposes. Said commissioners are to hold said property upon the same trusts and for the same purposes as it is now held by said city, and to have the same power over, and authority to sell, convey lease, or otherwise dispose of, the same, or part thereof which said city now has. This ordinance to go into effect from and after its passage." But, before the ordinance was reported back by the committee, though on the same day of a regular meeting of the general council, the plaintiffs, now appellants, commenced this action against the city of Louisville, mayor, members of the general council, (sued by names,) and commissioners of the sinking fund, to obtain an injunction, which was granted temporarily, restraining the general council passing, and the mayor approving, that or any ordinance for like purpose, and the city of Louisville conveying, and commissioners of the sinking fund taking possession of, controlling, or interfering with, any property acquired or held by the city for wharf purposes. The plaintiffs, who are numerous, state they are residents and owners of property in said city subject to municipal taxation, and engaged there in commercial business; that the city of Louisville has heretofore, by virtue of acts of the legislature, and with money procured by taxation, acquired at various places within its corporate limits along Ohio river, land to be held and used, and which has so far been kept and maintained, in aid of its commerce and trade, for public wharfs, those using them for business purposes being required to pay wharfage; that, although the city of Louisville holds said property for public use, without right to transfer to another its power and duty to preserve and maintain public wharfs, and the commissioners of the sinking fund are without right to acquire or hold it for any purpose yet the general council, mayor, and commissioners of the sinking fund have wrongfully and unlawfully agreed and conspired together for the city of Louisville to abdicate its right to and possession of said property, refuse hereafter to preserve and maintain it for the purpose intended, and by deed convey it to the commissioners of the sinking fund, with a view and to the end the latter may sell, convey, or transfer it at discretion to private individuals, thereby preventing public use of the wharfs, which is indispensable to the business of plaintiffs and others similarly situated. They further state that said ordinance, already prepared and sent by the mayor to the general council, in pursuance of the scheme mentioned, will be at once passed, followed by immediate transfer of the property, and irreparable injury thereby done to plaintiffs, unless the injunction be granted; and, the commissioners of the sinking fund being insolvent, there will be no adequate remedy at law. No answer was filed by the mayor, nor any member of the general council, except A. S. Stoll, of the board of aldermen, who, denying he was in favor of the passage of the ordinance, yet admitted it had been sent by the mayor to the general council for passage, and would have passed both boards thereof, if the injunction had not been granted. The city of Louisville, by the city attorney, answered, denying its alleged want of power to transfer to another the wharf property; and, though it was averred the ordinance had, since commencement of the action, been withdrawn, there was no denial it was introduced, referred to a committee, and would have been at once passed, and the purpose of it carried out, but for the injunction. The commissioners of the sinking fund in their answer denied that the free and uninterrupted use of the wharves is, as alleged in the petition, indispensable to prosecution of the business of the plaintiffs, and, in substance, averred existence of power in the city of Louisville to transfer, and not only its own power, but, because charged with payment of the city's bonded debt, also its right to hold and control, the wharf property, and revenues arising therefrom.

It seems to us the pleadings in this case, independent of any testimony, place beyond question that the mayor, members of the general council, or a majority of them, and commissioners of the sinking fund did agree upon the scheme mentioned in the petition for a transfer of the wharf property, and, if not restrained, would have carried it out; and if the power to make such transfer does not exist that scheme was, as charged, wrongful and unlawful; but whether the injunction sought was, in whole or in part, the proper remedy is the question for determination. The power of a municipal corporation to acquire land for the purpose of erecting wharves thereon, and to charge wharfage, is not a necessary incident of its charter, but must, like all its other powers be derived directly from the legislature; of course, to be exercised within the limits and upon conditions of the grant. Dill. Mun. Corp. § 110. And, looking to the nature and purpose of such special grant, it must be regarded as a trust, involving duties and obligations to the public and individuals which cannot be ignored or shifted; for the power to acquire, implies duty of the municipality, through its governing head, to maintain and preserve, wharf property for benefit of the public, without discrimination or unreasonable charges for individual use. In every instance, so far as we have observed, wharf property of the city of Louisville has been acquired under act of the legislature, and paid for by taxation; and in no case is there evidence of legislative intention it should be held otherwise than in trust for use of the public, and in aid of trade and commerce. The wharf property being so held, the city of Louisville cannot transfer...