Vanover v. Dunlap
| Decision Date | 12 December 1916 |
| Citation | 189 S.W. 915,172 Ky. 679 |
| Parties | VANOVER ET AL. v. DUNLAP ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Letcher County.
Suit by Sam Vanover and others against M. A. Dunlap and others. From a judgment, dismissing the petition after demurrer thereto was sustained, plaintiffs appeal. Affirmed.
Felix G. Fields and David Hays, both of Whitesburg, for appellants.
Allie W. Young and Wm. G. Dearing, both of Whitesburg, and O'Rear & Williams, of Frankfort, for appellees.
This action was instituted on May 10, 1915, by Sam Vanover and 35 other residents of Jenkins, a town of the sixth class against the board of trustees and the officers of said town seeking to have the proceedings whereby the town of Jenkins was incorporated declared null and void. Being of opinion that an action of this character could be maintained only by the Attorney General in the name of the commonwealth, the circuit court sustained a special demurrer to the petition which raised the question of the plaintiffs' right to maintain this action. From a judgment dismissing the petition for that reason, the plaintiffs appeal.
Section 3713, and subsequent sections of the Kentucky Statutes, provide for the creation and organization of towns of the sixth class. Section 3713 provides that no such town shall become incorporated unless it contains at least 125 inhabitants residing within the boundaries proposed to be established for such town, nor shall the boundary of any town, when incorporated, exceed one-quarter of a mile in each direction, the form of the town being square.
Section 3714 provides that proceedings to incorporate a town of the sixth class shall be commenced by a petition, signed by at least two-thirds of the voters living within the boundaries of the proposed town, accompanied by a request for such action signed by a majority of the voters resident therein; that the petition shall be filed in the circuit court clerk's office not less than 20 days before the commencement of the next regular term of the court, and notice of the filing of such petition, and the object thereof, published in two issues of some newspaper of general circulation published in the county, if there be one, and, if not, by notices posted for at least 10 days before the commencement of the term, one at the courthouse door, and three others at public places within the bounds of the proposed town. It further requires that the petition shall set out the metes and bounds of the proposed town, and such other facts as may be thought proper.
Section 3715 further provides that on the second day of the term of the court it shall take action upon the petition, provided the notice required had been given, or publication made thereof; and, in case the prayer be granted, the court is directed to enter a judgment, establishing a town in accordance with the prayer of the petition, and appoint therefor not less than five trustees, a police judge, a marshal, and an assessor, who shall hold their offices until the next election at which officers for cities and towns may be elected.
The judgment in the suit of Campbell and others, incorporating the town of Jenkins, entered on January 9, 1912, recites that it appeared to the satisfaction of the court that there were more than 125 bona fide residents within the territory proposed to be incorporated; that said territory did not exceed more than one-fourth of a mile in each direction necessary to form a square; that said petition was signed by more than two-thirds of the legal voters residing therein; that the notice of the application and the filing of the petition had been duly posted at the courthouse door in Whitesburg, Ky. for more than 10 days before the first day of the term, and had also been published twice in the Mountain Eagle and in the Kentucky News, two weekly newspapers published in Whitesburg, Ky. the county seat, just prior to the first day of the term at which the judgment was entered, and that the judgment, incorporating the town, was entered in the absence of any objection thereto. The judgment specifically set out the bounds of the proposed town, and appointed five trustees, a police judge, a marshal, and an assessor, as required by the statute.
The judgment incorporating the town is now attacked, upon three grounds: (1) That there were not, as a matter of fact, 125 bona fide inhabitants living within the boundary sought to be incorporated; (2) that the proper notice was not given; and, (3) that the petition was not filed 20 days before the first day of the term of court at which the judgment was entered.
The petition, seeking the incorporation of...
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...only by the state. (See, also, Coe v. City of Los Angeles, supra; City of Albuquerque v. Water Supply Co., supra; and Vanover v. Dunlap, 172 Ky. 679, 189 S.W. 915.) the latter case, the proceedings necessary to the incorporation of a town of the sixth class were all complied with, except th......
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