Bernard v. Russell County Air Board

718 S.W.2d 123, 1986 Ky. LEXIS 297
CourtKentucky Supreme Court
DecidedSeptember 25, 1986
StatusPublished
Cited by3 cases

This text of 718 S.W.2d 123 (Bernard v. Russell County Air Board) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard v. Russell County Air Board, 718 S.W.2d 123, 1986 Ky. LEXIS 297 (Ky. 1986).

Opinion

STEPHENS, Chief Justice.

This is an appeal from the Kentucky Court of Appeals’ affirmance of the decision of the Russell Circuit Court, holding that the Russell County Air Board had authority to instigate condemnation proceedings against movants’ property.

Two issues are raised by this appeal: whether the Russell County Air Board was a legally constituted organization, and if so, whether it had the right to instigate condemnation proceedings in its own name against movants’ property. We reverse both the trial court and the Kentucky Court of Appeals, holding that the Russell County Air Board was not a legally constituted organization as it did not comply with the requirements of an airport board organization, as enumerated in KRS 183.132, nor did it follow proper condemnation procedures, as detailed in the Eminent Domain [124]*124Act of KRS 416.560, to grant it authority to condemn movants’ property.

The Russell County Air Board’s decision to expand the Russell County Airport and its attempts to obtain movants’ land began in 1982. On November 12, 1982, movants were first ordered to allow their property adjacent to the Russell County Airport to be surveyed by representatives of the airport board. Movants sought and obtained a writ of prohibition from the Court of Appeals forbidding any orders from being entered wherein a lawsuit had not yet been filed. The Air Board then filed a complaint of condemnation in Russell Circuit Court against movants and an order was entered requiring movants to allow a survey of their land. The Court of Appeals granted movants a second writ of prohibition. A hearing was held on October 20, 1983, in Russell Circuit Court to determine whether the Russell County Air Board had the right to condemn movants’ land, and on February 23, 1984, the trial court held that the Air Board did have such authority. The Kentucky Court of Appeals affirmed and we granted discretionary review.

First, movants contend that the Russell County Air Board did not comply with the requirements of an airport board organization as enumerated in KRS 183.-132. We agree. The relevant sections of KRS 183.132 provide:

“183.132. Local air boards. — (1) Any city or county, or city and county acting jointly, or any combination of two (2) or more cities and/or counties may establish a nonpartisan air board composed of six (6) members.
(2) The board shall be a body politic and «corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with and do all things reasonable or necessary to effectively carry out the duties prescribed by statute. The board shall constitute a legislative body for the purposes of KRS 183.630 to 183.740.
(3) The members of an air board shall be appointed as follows: ...
(b) If the air board is established by a county, such members shall be appointed by the county judge/executive; ...
(4) Members of the board shall serve for a term of four (4) years each, and until their successors are appointed and qualified, provided, however, that initial appointments shall be made so that two (2) members are appointed for two (2) years, two (2) members for three (3) years and two (2) members for four (4) years. Upon expiration of these staggered terms, successors shall be appointed for a term of four (4) years.
(5) Members of the board shall serve without compensation but shall be allowed any reasonable expenses incurred by them in the conduct of the affairs of the board. The board shall, upon the appointment of its members, organize and elect officers. The board shall choose a chairman and vice chairman who shall serve for terms of one (1) year. The board shall also choose a secretary-treasurer who may or may not be a member of the board. The board may fix a salary for the secretary-treasurer and the secretary-treasurer shall execute an official bond to be set and approved by the board, and the cost thereof shall be paid by the board.
(6) The board may employ necessary counsel, agents and employes to carry out its work and functions and prescribe such rules and regulations as it deems necessary.
(7) The secretary-treasurer shall keep the minutes of all meetings of the board and shall also keep a set of books showing the receipts and expenditures of the board. He shall preserve on file duplicate vouchers for all expenditures and shall present to the board, upon request, complete reports of all financial transactions and the financial condition of the board. Such books and vouchers shall at all times be subject to examination by the legislative body or bodies by whom the board was created. He shall transmit at least once annually a detailed report of all acts and doings of the board [125]*125to the legislative body or bodies by whom the board was created....
(9) A quorum for the transacting of the business of the board shall consist of four (k) members. Meetings of the board may be called by the chairman or by four (4) members. In case of tie voting by the board, the issue shall be deemed to have failed passage.
(10) A board member may be replaced by the appointing authority upon a showing to such authority of misconduct as a board member or upon conviction of a felony. No board member shall hold any official office with the appointing authority.” (emphasis added).

Respondent substantially deviated from these statutory requirements. The secretary-treasurer of the Russell County Air Board testified that the Air Board frequently conducted business with less than a quorum present, in direct violation of KRS 183.132(9). Indeed, there was less than a quorum in attendance at the meeting during which the Air Board approved the plans for the airport expansion which included movants’ property. Testimony at trial showed that there were neither minutes for the Airport Board’s first meeting, as required by KRS 183.132(7), nor was there sufficient evidence of regular meetings thereafter. Moreover, KRS 183.-132(3)(b) specifically requires “If the air board is established by a county, such members shall be appointed by the county/judge executive.” No copy of the original appointment of the Air Board by the county judge-executive was in the record or proven to be in existence.

Respondent argues that although it may not have strictly complied with the requirements of KRS 183.132, it had a de facto existence which was later ratified. Schaffield v. Hebel, 301 Ky.

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Comair, Inc. v. Lexington-Fayette Urban County Airport Corp.
295 S.W.3d 91 (Kentucky Supreme Court, 2009)
Bernard v. Russell County Air Board
747 S.W.2d 610 (Court of Appeals of Kentucky, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
718 S.W.2d 123, 1986 Ky. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-russell-county-air-board-ky-1986.