Request By:
William Colvin, Esq.
City Attorney, City of Greensburg
102 North Main Street
Greensburg, Kentucky 42743
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting two questions, the first of which involves annexation. The city believes that in the near future it will have to consider annexing subdivisions adjacent to the present city limits. One developer has stated he will resist annexation unless he is paid for his capital investment for all water and sewer lines within the subdivision. The developer paid for laying the lines and the city has always furnished the water and the disposal system for the lines.
Your specific question is: "Would annexation constitute a taking of the developer's property which would entitle him to compensation for his capital investment in the water and sewer lines?"
Greensburg is, of course, a city of the fifth class [KRS 81.010(5)]. KRS 81.230 states in part that any city of the fifth class may annex any territory to the city in the same manner and under the same procedure as is provided in KRS 81.100 and 81.110 for annexation of unincorporated territory by cities of the first class, with certain exceptions noted in the statute. The annexation of property by a city is a political act within the exclusive control of the Legislature and the statutory procedure prescribed must be followed.
City of St. Matthews v. City of Beechwood Village, Ky., 373 S.W.2d 427 (1963).
In
Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089, 1091 (1910), the Court said in part as follows:
". . . But it has been repeatedly announced, by this court and others, that the question of due process of law or the taking of property without compensation has no application to the annexation of territory to a municipality. The extension or reduction of the boundaries of a city or town is held, without exception, to be purely a political matter, entirely within the power of the Legislature of the state to regulate. The established doctrine is that the state Legislature has the unlimited right to pass such laws for the annexation of territory to municipal corporations as in its judgment will best accomplish the desired end, and that a different method may be provided for each class . . . ."
See also
Lenox Land Co. v. City of Oakdale, Ky., 127 S.W. 538 (1910), where the Court extended its opinion in the first Lenox Land Co. case, supra, for the purpose of saying that the annexation statutes applicable to fifth class cities do not deprive landholders of liberty or property without due process of law, or deny them the equal protection of the laws guaranteed by the Fourteenth Amendment to the federal Constitution.
In
Yount v. City of Frankfort, Ky., 255 S.W.2d 632, 634 (1953), the Court dealt with allegations that KRS 81.190, concerning the annexation of territory by a third class city, violated various sections of the state and federal Constitutions:
"Appellants' next contention that KRS 81.190 violates Kentucky Constitution § 2 (absolute and arbitrary power over life and property does not exist), § 59 (forbidding special legislation), and § 1 of the Fourteenth Amendment to the Federal Constitution (due process clause), is so conclusively answered in
Lewis v. Brandenburg, 105 Ky. 14, 47 S.W. 862, 48 S.W. 978, on petition for rehearing, and
Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089, 127 S.W. 538, on petition for rehearing, that we do not deem it necessary in this opinion to restate the law."
Finally, in
Hopperton v. City of Covington, Ky., 415 S.W.2d 381, 384 (1967), the Court said:
"Appellants finally contend that the proposed annexation will unconstitutionally deprive them of property without due process of law. As clearly set forth in
Yount v. City of Frankfort, Ky., 255 S.W.2d 632, and
Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 125 S.W. 1089 and 127 S.W. 538, this question has no application to annexation of territory by a municipality. "
Thus, the Kentucky cases cited above have consistently and clearly held that the question of due process of law or the taking of property without compensation has no application to the annexation of territory to a municipality.
Your next question concerns "the authority for the city's entitlement for having the Court Clerk taxing arrest fees in the city's behalf."
In OAG 78-162, copy enclosed, we dealt with whether city policemen are still allowed the arrest fee (which is now $10.00) pursuant to KRS 64.090 in misdemeanor cases. KRS 95.740(2) provides that policemen in fifth class cities are entitled to the same fees allowed sheriffs, but the city may direct by ordinance that the fees be paid into the city treasury when the policemen are on a salary. Furthermore, the arrest fee is separately taxed in the costs and is payable if the defendant is convicted and if the defendant pays the fee to the district court clerk (who then can pay the policeman or, if there is an ordinance to that effect, deposit the fee in the city treasury) . See also OAG's 74-98 and 73-234, copies enclosed.