Perry v. City of Junction City

Full title: JOSEPH O. PERRY; AND EJPKD, LLC a/k/a LIQUOR MART OF DANVILLE APPELLANTS…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 15, 2013

NO. 2012-CA-000691-MR (Ky. Ct. App. Mar. 15, 2013)

Opinion

NO. 2012-CA-000691-MR

03-15-2013

JOSEPH O. PERRY; AND EJPKD, LLC a/k/a LIQUOR MART OF DANVILLE APPELLANTS v. CITY OF JUNCTION CITY; CITY COUNCIL OF JUNCTION CITY AND ITS COUNCIL MEMBERS IN THEIR OFFICIAL CAPACITY ONLY, TO WIT: KENNY BALDWIN, LLOYD BOWLING, HERSHEL FLETCHER, RYAN OWENS, DEWAYNE TAYLOR, and SHERRIL WALL; and the MAYOR OF THE CITY OF JUNCTION CITY, JIM DOUGLAS, IN HIS OFFICAL CAPACITY ONLY APPELLEES

BRIEFS FOR APPELLANTS: T. Bruce Simpson, Jr. Lexington, Kentucky BRIEF FOR APPELLEES: William R. Noelker Danville, Kentucky

CAPERTON

NOT TO BE PUBLISHED

APPEAL FROM BOYLE CIRCUIT COURT

HONORABLE DARREN W. PECKLER, JUDGE

ACTION NO. 11-CI-00617

OPINION

AFFIRMING

BEFORE: CAPERTON, DIXON, AND NICKELL, JUDGES. CAPERTON, JUDGE: Appellants, Joseph O. Perry and EJPKD, LLC, a/k/a Liquor Mart of Danville, appeal from an order granting a motion to dismiss their complaint alleging that Appellee, City of Junction City, was reclassified as a city of the fourth class in violation of Section 156 of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 81.032. We affirm.

Junction City was formerly classified as a city of the fifth class based upon its population of more than 1,000 but less than 3,000 people. In 2008, the Junction City Council enacted Resolution No. 12-18-08, which attempted to establish that the population of Junction City had grown from 2,184 people in the year 2000 to 3,057 people in the year 2008. In 2011, the Kentucky General Assembly enacted SB 82 reclassifying Junction City as a city of the fourth class. See KRS 81.010. Following reclassification, Junction City held a local option election concerning the sale of alcoholic beverages. Junction City residents voted to approve the sale of alcoholic beverages within the city limits. Thereafter, Junction City enacted local ordinances to allow the sale of alcoholic beverages. In December 2011, Perry filed a complaint in Boyle Circuit Court challenging the authority of Junction City to operate as a city of the fourth class and sell alcoholic beverages based on the undisputed fact that Junction City has a population of less than 3,000 people. Junction City filed a motion to dismiss in response to the complaint. Following a hearing, the trial court granted the motion to dismiss. This appeal followed.

Perry argues that the reclassification of Junction City as a city of the fourth class is null and void because the city was reclassified in violation of Section 156 of the Kentucky Constitution and KRS 81.032.

Former Section 156 of the Kentucky Constitution states:

The cities and towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. The organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. To the first class shall belong cities with a population of one hundred thousand or more; to the second class, cities with a population of twenty thousand or more, and less than one hundred thousand; to the third class, cities with a population of eight thousand or more, and less than twenty thousand; to the fourth class, cities and towns with a population of three thousand or more, and less than eight thousand; to the fifth class, cities and towns with a population of one thousand or more, and less than three thousand; to the sixth class, towns with a population of less than one thousand. The General Assembly shall assign the cities and towns of the Commonwealth to the classes to which they respectively belong, and change assignments made as the population of said cities and towns may increase or decrease and in the absence of other satisfactory information as to their population, shall be governed by the last preceding Federal census in so doing; but no city or town shall be transferred from one class to another, except in pursuance of a law previously enacted and providing therefor. The General Assembly, by a general law, shall provide how towns may be organized, and enact laws for the government of such towns until the same are assigned to one or the other of the classes above named; but such assignment shall be made at the first session of the General Assembly after the organization of said town or city.

Section 156 was repealed in 1994 and replaced by Section 156a, which states:

The General Assembly may provide for the creation, alteration of boundaries, consolidation, merger, dissolution, government, functions, and officers of cities. The General Assembly shall create such classifications of cities as it deems necessary based on population, tax base, form of government, geography, or any other reasonable basis and enact legislation relating to the classifications. All legislation relating to cities of a certain classification shall apply equally to all cities within the same classification. The classification of all cities and the law pertaining to the classifications in effect at the time of adoption of this section shall remain in effect until otherwise provided by law.

KRS 81.032, which was enacted in 1986, states:

(1) Prior to the reclassification of any incorporated area by the General Assembly, the legislative body of such area shall provide to the General Assembly by certified resolution the population data as required by subsections (2) and (3) of this section.
(2) Prior to the reclassification of any incorporated area by the General Assembly, such area shall have attained the population requirements as established by Section 156 of the Constitution of the Commonwealth of Kentucky.
(3) The population of any city proposed for reclassification shall be based on consideration of the most recent municipal population estimates as provided by the United States Bureau of Census, except that if recent growth in a city makes such estimates invalid, a city may submit for consideration an affidavit to certify such new growth. Such an affidavit shall be supported by documentation which may include more recent property valuation information, door to door population counts or other municipal data, such as annexation records, which may not be included in the recent population estimates.

The former Court of Appeals has held that courts lack the authority to assign or change the classification of a city from one class to another even when the classification is erroneous. Griffin v. Powell, 143 Ky. 276, 136 S.W. 626, 627 (Ky. 1911). In Griffin, the Court stated:

The judgment is bottomed alone upon the supposed want of constitutional power in the Legislature to assign the city of Somerset to the third class, because it did not in fact have the population necessary to entitle it to be made a city of that class. We do not concur in this conclusion. On the contrary, it is our opinion that the Legislature in designating Somerset a city of the third class by the act in question must be regarded as having lawfully exercised the power conferred upon it by section 156 of the Constitution. In other words, in view of the provisions of the Constitution contained in the section, supra, the act of the Legislature is conclusive, and cannot be questioned by the courts. Manifestly this is so; for, whereas in a matter such as is here presented evidence is a condition precedent to the right of the Legislature to act, it will be accepted without inquiry that it had before it the evidence authorizing it to act, and, though it did not in fact have such evidence, it is not competent for the courts to go behind the legislative action for the purpose of determining whether it had or had not the required evidence before it.
There is no constitutional provision requiring that the Legislature in transferring a city from one class to another shall have before it any census, whether taken by the federal government or the city authorities, from which to ascertain its population, though it may use either. The provision of section 156 is that in the absence of other evidence the Legislature shall resort to the last census taken previous to the enactment. The manner of ascertaining the population is therefore a matter wholly in the discretion of the Legislature, and being required to act upon evidence of some kind in transferring a city from one class to another, when it by the necessary legislation makes the transfer, it will be presumed it was
done upon sufficient evidence, and the legislative act will be conclusive.

Id. Similarly, in Green v. Commonwealth, 16 Ky.L.Rptr. 161, 24 S.W. 610 (Ky. 1894), the Court refused to invalidate the act of the General Assembly classifying the city of Pineville as a city of the fourth class when the actual population was that of a city of the sixth class. The Court stated:

[T]he only question involved is whether the classification of the cities and towns of the commonwealth shall be made by the courts, or made-as provided in the constitution-by the general assembly. To state the question is, of course, to answer it... Clearly, therefore, to the legislative department of the government, in pursuance of some law enacted for that purpose, must be left the right to change the assignment of a city from one class to another, if the unambiguous direction of the constitution is to be observed. No argument or citation of authority can make this plainer than the constitution makes it.

Id.

We cannot conclude that the General Assembly acted in violation of the Constitution or KRS 81.032 in reclassifying Junction City as a city of the fourth class. Section 156a plainly broadens the power of the legislature to classify cities as "it deems necessary based on population, tax base, form of government, geography, or any other reasonable basis," whereas repealed Section 156 provided for the classification of cities based on population alone. Under the authority cited above, in Griffin v. Powell, supra, and Green v. Commonwealth, supra, this Court is not permitted to look behind the classification itself and question the evidence utilized by the General Assembly in reclassifying Junction City. Therefore, we conclude that the evidentiary requirements of KRS 81.032 were satisfied through the legislative enactment itself.

Accordingly, the order of the Boyle Circuit Court is affirmed.

ALL CONCUR. BRIEFS FOR APPELLANTS: T. Bruce Simpson, Jr.
Lexington, Kentucky
BRIEF FOR APPELLEES: William R. Noelker
Danville, Kentucky