DISSENTING OPINION
OSBORNE, Judge.The question before the court in this proceeding is whether a delay of over 5*4 years between the action of a city council proposing to annex territory and the enactment of the final ordinance annexing it is unreasonable. The trial court found as follows:
“ * * * the Court finds in the case at bar that the period of time elapsing between the introduction of the ordinance on April 12, 1960, and its adoption on November 9, 1965, was an unreasonable delay and amounts to an abandonment. *733Therefore, the notice was defective, and the attempted adoption was void.”
I see no reason to disturb these findings. The majority opinion seems to say 5½ years is not unreasonable, citing McClain v. City of Independence, Ky., 351 S.W.2d 512, wherein we held a two year lapse was not unreasonable. I believe this holding likewise was erroneous. The opinion is more in the nature of one in per curiam than the normal opinion rendered by this court. It cites no authority whatsoever for the holding when there was considerable law upon the subject at the time. So, I would therefore reverse this decision. In Tuell v. Meacham Contracting Company, 145 Ky. 181, 140 S.W. 159, the council of Henderson passed upon its first reading an ordinance providing for the improvement of certain streets on May 4, 1909. On June 1 of the same year the ordinance was again publicly read but failed of passage. On August 3 it was again brought up and received the required number of votes. In a well-considered opinion this court held on a close question that two months was not an unreasonable delay, and further pointed out that what would be unreasonable must depend upon the facts and the circumstances of each case. The pertinent portion of the opinion reads as follows:
“We are of opinion that inasmuch as the ordinance in question was passed in compliance with the requirements of the statute, and the public had two meetings at which their objections to the ordinance were or might have been heard, the validity of the ordinance should be upheld. It is not shown that between June 1st, when it was defeated, and August 3d, when it was passed, conditions had in any wise changed. This being true, appellants are in no more condition to complain than they would have been had the motion to reconsider been made and passed upon the night when the ordinance was defeated. Council unquestionably has a right to reconsider its action at any time, provided the motion is made within a reasonable time.
“What would be a reasonable time must depend upon the facts and circumstances of each particular case.
“In the case at bar we hold that two months was a reasonable time.”
See also Bass v. City of Chicago, 195 Ill., 109, 62 N.E. 913, wherein it is held that the lapse of more than a year after certain estimates had been made and a public hearing held and the enactment of the last ordinance was an unreasonable delay. See also McLaughlin v. City of Chicago, 198 Ill. 518, 64 N.E. 1036, which holds that a delay in the enactment of a state improvement ordinance was not unreasonable. The supreme court of New Jersey in De Vincenzo v. Town of West New York, 120 N.J.L. 541, 1 A.2d 36, 37 held that any unlawful break in the continuity of action in the passing of an ordinance renders the ordinance invalid. The opinion states:
“The ordinance was introduced and given a first reading on September 28, 1937, when it was laid over * * *. The next regular meeting was on October 26, 1937, and the ordinance was advertised for that meeting. At the meeting on October 26, 1937, opposition developed to the passage of the ordinance, and the minutes of the meeting disclosed that ‘In view of the many objections the Commissioners decided that the adoption of the ordinance be deferred.’ * * * Without further advertisement of the purpose to consider the Board of Commissioners did take up and finally pass the ordinance at its meeting on November 23rd. It was said in Jersey City, H. & P. St. Ry. Co. v. Passaic, 68 N.J.L. 110, 52 A. 242, 243, that ‘the public has the right to know when action upon an ordinance is to be taken, and if, by failure to act or other cause, an ordinance is stayed in its progress to final passage, through a failure of proper continuance by the council, it dies with the end of the last vitalizing action.’ See, also, Farish v. [Mayor, etc.] Linwood City, 112 N.J.L. 285, 170 A. 249. The continuity in the *734municipal action • was broken when the meeting of October 26, 1937, adjourned without day (sic) for the consideration of the ordinance. That was the end of the last vitalizing action.”
5 McQuillin Mun. Corp. (3rd Ed.), Section 16.33 provides:
“The public has a right to know when action is to be taken upon an ordinance. Accordingly, where an ordinance is unduly stayed in its progress to final passage, as in case of failure to take action on it at the time to which it has been continued, it dies. Continuity is broken where a measure is considered at a regular meeting to which it has previously been laid over and where the adoption of the measure is deferred at such regular meeting, which adjourns, without the measure being continued over to a fixed day.”
It is my opinion that municipal councils should follow a certain continuity of action so that the public can be continually apprised of the proceedings before it. A delay of 5½ years in the enactment of an ordinance from notice of its initial introduction seems to me unreasonable. The majority opinion makes the statement "It is recognized that a court may not legislate by fixing * * * a maximum time.”
I believe it is also recognized that a court has the authority and must in these instances determine what is a reasonable time. If this interval had been 50 years, would we have still held it reasonable? If it had been 20 years, what would have been the result? Or even 10 years. It seems that when the delay is such that public attention is lost, thereby defeating the purposes of public notice, it is unreasonable. Without such rule the entire philosophy of unreasonable delay becomes meaningless. Here the delay was unreasonable because the interested parties had lost notice of the pendency of the ordinance and the council’s ultimate action was action without notice.
For the foregoing reasons, I dissent.