State ex rel. Hawks v. City of Topeka

• Citation: 270 P.2d 270,176 Kan. 240
• Decision Date: 08 May 1954
• Docket Number: No. 39241,39241
• Parties: STATE ex rel. HAWKS, County Atty. of Shawnee County, v. CITY OF TOPEKA et al.
• Court: United States State Supreme Court of Kansas

Page 270

270 P.2d 270

176 Kan. 240

STATE ex rel. HAWKS, County Atty. of Shawnee County, v. CITY OF TOPEKA et al.

No. 39241.

Supreme Court of Kansas.

May 8, 1954.

Syllabus by the Court.

1. An act duly passed by the legislature is presumed to be constitutional and, before the courts can declare it invalid, it must clearly appear to be unconstitutional.

2. The constitutional maxim which prohibits the legislature from delegating its power to any other body or authority is not violated by vesting municipal corporations with certain powers as to matters purely of local concern of which the municipality immediately interested is supposed to be a better judge than the legislature.

3. While the legislature possesses all the legislative power of the state, it is impracticable for it to exercise that power in minute detail. Its function is to enact general provisions, leaving to those who know their local problems best the right to fill in the details in carrying out the general provisions granted by the legislature.

4. The legislature in enacting G.S.1953 Supp., 13-1388 et seq., provided adequate standards for the acquisition and construction of municipal off-street parking facilities, so as to enable cities of the first class to carry out its use and purpose.

5. G.S.1953 Supp., 13-1388 to 13-1391, inclusive, examined and held not to contravene section 1, article 2, of the constitution of the state of Kansas.

6. The legislature may authorize the acquisition and appropriation of private property for public use. The question whether the use to which a municipality intends to devote property taken under the right of eminent domain is a public one, is a judicial question for the determination of the court, but a legislative declaration with respect to that question is entitled to a prima facie acceptance of its correctness.

7. The regulation of streets and traffic is in the interests of public safety, convenience and necessity, and the stopping or parking of vehicles along the streets is a legitimate use of the streets, subject to legislative control, and it therefore follows that the provisions of G.S.1953 Supp., 13-1388 to 13-1391, inclusive, for the acquisition of property for off-street parking facilities, is for a public purpose and use.

8. Municipal corporations are creations of law and can exercise only powers conferred by law and take none by implication. The only powers municipalities ever acquire in addition to those expressly granted are powers necessary to make effective the power expressly conferred.

9. Any attempt by a municipal corporation to contract away any of its powers or duties granted by the legislature to a private individual or corporation, constitutes an illegal delegation of such powers and duties by the city, and renders the contract invalid.

10. Under the facts and for the reasons set forth in the opinion, it is held: That the contract for a proposed lease entered into between the City and Park and Shop, Inc., is invalid in that, if consummated, it would result in the unlawful delegation of powers conferred upon and possessed by the city.

Lester M. Goodell, Topeka, argued the cause, and Doral H. Hawks, County Atty., of Shawnee County, and Margaret McGurnaghan, and Frederick A. Mann, Topeka, were with him on the briefs for plaintiff.

Frederic J. Carman, City Attorney, Topeka, and Robert L. Webb, Topeka, argued the cause, and James A. McClure, Ralph W. Oman, Philip E. Buzick, Robert A. McClure, and James D. Waugh, Topeka, were with them on the briefs for defendants.

WERTZ, Justice.

This is an original proceeding in the nature of quo warranto brought by the State upon the relation of the county attorney of Shawnee county against the City of Topeka, hereafter referred to as the city, and its officers, to oust the City of Topeka from exercising its right of eminent domain in acquiring off-street parking facilities, alleging the statutes in question to be unconstitutional; that the acquisition and appropriation of the properties in question were not taken for a public use, and that the contract for a lease entered into between the parties was invalid.

This action arose out of the authority conferred upon cities of the first class as provided by G.S.1953 Supp. 13-1388 to 13-1391, inclusive, which grants power to all such cities to acquire by eminent domain, real estate for the purpose of off-street parking, and for the improvement of such land by construction of a building thereon so as to provide parking facilities, the financing of such project to be derived from the sale of revenue bonds payable out of the income from the operation of the parking facilities, and in the event of any deficiency, authority is given for payment of bonds out of the net proceeds of revenues derived from the on-street parking meters.

In December, 1950, the city acting under the provisions of the mentioned statutes caused an investigation and survey to be conducted for the purpose of determining the extent of on-street parking, the need of and suitable locations for off-street parking facilities, and the approximate acquisition and improvement costs.

The survey was made by the state highway commission which made a report and filed the same with the city in its final form, prior to September 30, 1952. A further survey was made in behalf of the city by Donald A. Seltsam and filed with the city on March 13, 1952.

On September 8, 1952, defendant city entered into a contract to lease certain parking facilities to be later acquired by the city to Park and Shop, Inc., a private corporation, hereafter referred to as Park and Shop, specially organized by a group of individuals, most of whom were merchants operating businesses on Kansas Avenue, for the purpose of entering into a lease contract with the City of Topeka for the operation, management and control of municipally-owned parking lots or stations.

After the contract between Park and Shop and the city had been executed by the parties, the city met November 18, 1952, in regular session and presented for first reading a resolution, the substance of which was that the city deemed it advisable to acquire certain properties for off-street parking (describing them), stating the aggregate cost for acquiring and improving the property to be acquired and other costs incident thereto, and authorizing $2,000,000 of revenue bonds to be issued by the city to pay the aggregate cost, and further providing a date certain for public hearing for any protests to the resolution. On December 16, 1952, the city heard all protestants.

On December 23, 1952, the city adopted an order for condemnation of the properties to be taken, and on December 30, 1952, it adopted Ordinance No. 8364, which declared it necessary to condemn and appropriate for its use for the purpose of establishing off-street parking facilities two separate pieces of property, one to be cleared and paved for surface parking and the other to be cleared and a ramp-style building constructed thereon as quickly as possible, consisting of a basement and three levels to provide parking accommodations for approximately 400 automobiles, and authorized the city to make application to the district court for the appointment of appraisers and to make appraisement of damages occasioned by the acquisition. Other provisions of the ordinance relating to the improvements thereon need not be noted.

On March 28, 1953, the city instituted its proceedings in condemnation of the properties hereinbefore mentioned for the establishment of two municipally-owned parking lots, and petitioned for the appointment of appraisers who later filed their report awarding damages. On April 5, 1953, the city by ordinance authorized the issuance of revenue bonds for the purpose of paying for the acquisition and improvement costs of the two parking sites and for other incidental costs.

We shall discuss the three questions presented here in their order:

1. Does G.S.1953 Supp., 13-1388 to 13-1391, inclusive, constitute an illegal delegation of legislative power to the city?

2. Does the taking of private property for off-street parking constitute a public use?

3. Is the contract for a lease for the operation, management and control of off-street parking facilities valid?

The State first contends the mentioned statutes violate section 1, article 2, of our state constitution, 'the legislative power of this state shall be vested in a house of representatives and senate', in that no adequate standards are prescribed by the statutes, and therefore an unlawful delegation of legislative power.

It is a well-settled rule that an act duly passed by the legislature is presumed to be constitutional and, before the courts can declare it invalid, it must clearly appear to be unconstitutional. State ex rel. Osborn v. Richardson, 174 Kan. 382, 389, 256 P.2d 135; Board of Education of School Dist. No. 1 v. Robb, 168 Kan. 368, 212 P.2d 306; State ex rel. Miller v. Common School District No. 87, 163 Kan. 650, 185 P.2d 677; West's Kansas Digest, Constitutional Law, k48, and 1 Hatcher's Kansas Digest (Rev.Ed.), Constitutional Law, § 16.

Courts do not inquire into the motive or wisdom of legislation. Such considerations are solely the province of the lawmakers. The duty of the court is to make the legislative will effective whenever reasonably possible to do so. State, ex rel. Graham v. Russell, 171 Kan. 709, 237 P.2d 363; Campos v. Garden City Co., 166 Kan. 352, 355, 201 P.2d 1017.

Do the statutes in question set forth sufficient standards so as not to contravene section 1, article 2, of the state constitution?

Section 13-1388 provides as follows:

'Any city of the first class may, as hereinafter provided, acquire by purchase, lease, gift or condemnation any land in or near areas zoned as business, commercial or industrial districts in such city for off-street parking facilities, and may improve any such land by the construction of a building thereon, or...