
    Case 60 — PETITION EQUITY
    May 30.
    Morton v. Woodford, et al.
    APPEAL PROM DAVIESS CIRCUIT COURT.
    1. Establishing Towns — Acts Giving that Power to the Courts Constitutional. — The Kentucky Statute conferring npon circuit courts the right to establish towns in this State under certain conditions, is constitutional.
    2. Appeals — Power of the Legislature to Restrict1. — The legislature has the power to designate in what class of cases appeals may be taken from the lower courts, and it is expressly provided ift the statute under consideration that no appeal shall be allowed from tbe judgment of the circuit court.
    J. A. DEAN FOR APPELLANT.
    1. The petition of the appellee was not good because it showed that the territory sought to be incorporated is greater in extent than is permitted by the statute. The wording of the statute referring to the limits of the boundary of a town to> be incorporated is complete and without ambiguity, therefore no more can be necessary than to expound said wording in tbe natural and ordinary sense. (Sutherland on Statutory Construction, section 247.)
    2. Tbe Legislature in framing a general law under which municipal governments might be called into existence 'arbitrarily, fixed a limit below which the territory should not go in point of density of population.
    3. The petition did not state facts showing that the petitioners were persons entitled to vote.
    
      4. The allegations of the petition which are denied in the answer are not of such facts as are presumptively within the knowledge of the defendant and the court erred in sustaining the demurrer to the answer. (Civil Code, sub-sec. 7 of sec. 113; Wing v. Dngan, 8 Bush, 583; Greer v. Covington, 83 Ky., 410.)
    5. The creation of a corporation is an exercise of the sovereign power and essentially legislative in its nature and there is no authority ■in the Constitution for the delegation of such legislative power ■to- the courts, therefor© the assumption of -such power by the courts, without express constitutional provision permitting such legislation, is unconstitutional. (Territory v. Stewart, 29 Amer. & Eng. Corp. Cases, 22; People v. Nevada, 6 Cal., 143; People v. Bennett, 29 Mich., 451, 17 Am. Rep., 107; 15 Amer. & Eng. Enc. of Law, page 961 and note; Cooley on Constitutional Limitation (4th ed.), 145, 146; in re Osborne, 101 Pa. St., 284.)
    6. If either the area allowed by the statute was- exceeded, or there was not the requisite- number of voters that signed the- petition, then the jurisdiction of the court did not attach and therefore any judgment rendered by said court was yoid. (13 Atlantic Reporter, 224 (cited in note 1), page 962, 15 Amer. & Eng. Enc. of Law.)
    7. The statute should «oíbe-so construed as to show appellant (has no right to appeal. (Sutherland on Statutory .Construction, sees; 366, 369.)
    ELI. H. BROWN foe. appeulees.
    1. The Legislature is given the power by our present Constitution to change or modify the right -of appeal, and the same power was given by the Constitution of 1850; and under this power the Legislature for over forty years- restricted ith© right of appeal to this court in a large class of actions and denied the right of appeal in some, and regulated the right generally. (Constitution of Ky., Secs. 110; 125, 126 and 127; Constitution of 1850, Art. 4, sec. 18.)
    2. The right of -appeal in this State- is purely -statutory, our statutes having repealed the -common larw as -to writs of error, and we must therefore look alone- to the statutes for the jurisdiction of th© Court of Appeals, and the manner of having it exercised over actions of which the- Legislature- has given it the power of review. (Amer- Die. of Law, 580.)
    3. The exercise of the right by the courts to- establish -towns and refuse -the petition to establish them, -is not an attempt npo-n th© part of the judicial department to usurp an exclusively legislative function. (Fletcher v. Peck, 6 Cranch, 87; Cooley’s Con. Lim., 5 ed., 108; Works -on Courts and Their Jurisdiction, sec. 29.)
    4. Statutes similar to the one under consideration have been upheld in a great number of States. (See 15 Amer. & Eng. Enc. of Law, pp. 958 and 959, and authorities there cited.)
   JUDGE GUFFY

delivered the opinion of the court.

This appeal is prosecuted by the appellant from a judgment of the Daviess Circuit Court, establishing the town of. Kenwood.

The only questions which we deem it necessary to determine are: First, whether the circuit court can legally establish a town; second, has this court jurisdiction of am appeal from such a judgment of the circuit court?

Article 8, chapter 89 of the Kentucky Statutes, confers upon circuit courts the power under certain conditions to> establish towns, and provides that no appeal shall lie from the judgment. We think the power so conferred on the circuit courts is constitutional.

Section 126 of the Constitution provides that the jurisdiction of circuit courts should remain as then, established by law, giving the Legislature power to change the same.. The Constitution also prohibits local legislation, hence some' department of government must of necessity be invested with power and authority to establish towns, and it seems, to us that the circuit courts are proper tribunals to be invested with such power.

The act in question is not, in our judgment, at all in conflict with section 28 of the Constitution. The power conferred is not legislative. This court has appellate jurisdiction only, and section 110 of the Constitution provides that such jurisdiction shall be under such rules and regulations, not repugnant to the Constitution, as may from time to time be prescribed by law.

The act of the Legislature of the 10th of June, 1893, provided that no appeal to this court should be allowed from judgments in many cases enumerated in the act, and then provided that in all other civil cases appeals might be taken, but after the passage of this act the act of July 3, 1893, confeiTing the jurisdiction on circuit courts to establish towns, was passed and appeals from judgments in su.ch cases disallowed.

It has always been recognized as within the power oi the Legislature to determine from what .judgment appeals might be taken.

For the reasons indicated we are of opinion that this court lias no jurisdiction of this appeal, and the same is dismissed.  