Request By:
Mr. William R. Bauereis
Chief Deputy Clerk
Kenton County Court
P.O. Box 788
Covington, Kentucky 41012
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 25 in which you present the following facts and question:
"For some time the City of Covington and the City of Taylor Mill have been waging a court battle to determine the annexation to a certain area of this county. The latest judgement rendered by the Kenton Circuit Court Fourth Division awarded the territory in question to the City of Covington. An appeal on this judgment was immediately made to the Kentucky Court of Appeals by the City of Taylor Mill. (Copies of documents are enclosed.)
"My question is: Since there is a primary election on May 24, 1977 for offices of Covington City Commissioners, are the resident voters of the territory in question permitted to vote for these offices, or does the appeal by the City of Taylor Mill still place the outcome in doubt? There are approximately 2000 residents in this area and their vote could easily decide a candidate's nomination."
The Kenton Circuit Court judgment to the effect that the city of Covington's annexing ordinance of the territory in question is valid, authorizes those registered voters of the area to vote in the coming city primary even though an appeal has been taken to the Supreme Court of Kentucky, in the absence of any attempt to supersede the judgment.
In the case of
Taustine v. Fleigh, Ky., 374 S.W.2d 508 (1964), the Supreme Court concluded that once a verdict and judgment has been obtained in the circuit court upholding annexation, the city could proceed to annex the territory in spite of the fact that the judgment may be appealed to the Supreme Court. We quote the following except from this case:
"Once the verdict and judgment in the circuit court are obtained upholding annexation, the city may proceed to annex the territory despite the fact that the judgment may be appealed to this Court. An appeal does not stay a judgment, Ky. Digest, Appeal and Error, Key 460. There is no statutory provision delaying the action of the city legislative body any longer after a judgment favorable to annexation is obtained in the circuit court. It must be remembered that the appeal provision permits the city as well as the remonstrant to appeal the judgment of the circuit court. But when the city is the victor in the remonstrance litigation in the circuit court, it is free to go ahead with its annexation proceedings regardless of the remonstrant's appeal if the city legislative body deems it wise to do so."
See also
Big Sandy Commerical Bank v. Skaggs, 249 Ky. 81, 60 S.W.2d 90 (1933); and
Lowery v. Madden, 308 Ky. 342, 214 S.W.2d 593 (1948).
As pointed out above, when a city annexes territory those persons who are registered voters in the annexed territory automatically become qualified voters in the city at the time the annexation becomes effective. Thus, in spite of the appeal, those registered voters in the annexed area would be entitled to vote in the special city primary for city commissioner. See