State ex rel. Martin v. City of Kansas City

• Decision Date: 09 November 1957
• Docket Number: No. 40292,40292
• Citation: 317 P.2d 806,181 Kan. 870
• Parties: STATE of Kansas ex rel. Donald E. MARTIN, County Attorney of Wyandotte County, Kansas, Plaintiff, v. The CITY OF KANSAS CITY, Kansas, a Municipal Corporation; Paul F. Mitchhum, Mayor-Commissioner; Earl B. Swarner, Commissioner of Finance, Health and Public Property; Joseph P. Regan, Commissioner of Boulevards, Parks and Streets; and Quindaro Township, Wyandotte County, Kansas, a Body Politic and Corporate, Defendants.
• Court: Kansas Supreme Court

Page 806

317 P.2d 806

181 Kan. 870

STATE of Kansas ex rel. Donald E. MARTIN, County Attorney of

Wyandotte County, Kansas, Plaintiff, v. The CITY OF KANSAS CITY, Kansas, a Municipal Corporation;

Paul F. Mitchhum, Mayor-Commissioner; Earl B. Swarner,

Commissioner of Finance, Health and Public Property; Joseph

P. Regan, Commissioner of Boulevards, Parks and Streets; and

Quindaro Township, Wyandotte County, Kansas, a Body Politic

and Corporate, Defendants.

No. 40292.

Supreme Court of Kansas.

Nov. 9, 1957.

Syllabus by the Court

1. The advisability of enlarging the territorial limits of a city is a legislative function which cannot be delegated to a court, and if an ordinance annexing territory is attacked, the court's duty is only to determine whether under the facts the city has statutory authority to enact the ordinance.

2. Cities are creations of the legislature and can exercise only the power conferred by law; they take no power by implication and the only power they acquire in addition to that expressly granted is that necessary to make effective the power expressly conferred.

3. 'Platted land,' ad the term is used in G.S.1955 Supp., 13-1602a, is land subdivided into lots and blocks.

4. The word 'block,' as used in 13-1602a, ordinarily refers to a space rectangular in shape, enclosed by streets and used or intended to be used for building purposes.

5. As used in 13-1602a, the word 'within' is usually defined as being 'inside the limits of,' and the word 'mainly' is defined as 'principally,' 'chiefly,' or 'in the main.'

6. Where annexation of unplatted land is attempted under 13-1602a, more than one-half of the perimeter of the unplatted land sought to be annexed must have a common boundary with the city.

7. 13-1602a imposes a geographical requirement, rather than an economic and sociological one.

8. Courts should not judicially legislate so as to broaden the plain letter of the statute.

Arthur J. Stanley, Jr., Kansas City, argued the cause, and Donald E. Martin, county attorney, Kansas City, and Newell County Attorney, Newell George, Assistant County Attorney, and Leonard O. Thomas, Kansas City, were with him on the briefs for the plaintiff.

J. W. Mahoney, Kansas City, argued the cause, and Charles W. Brenneisen, Jr., David W. Carson, Joseph T. Carey and Francis J. Donnelly, Kansas City, appeared with him on the briefs for defendant City of Kansas City.

WERTZ, Justice.

This is a proceeding in the nature of quo warranto brought in the name of the state of Kansas on relation of the county attorney of Wyandotte county against the city of Kansas City, a municipal corporation, and the mayor and city commissioners thereof, to question the validity of city ordinance No. 40,220, whereby the city sought to annex a tract of land within Quindaro township. This tract consists of approximately 2300 acres adjacent to the city and is generally referred to as Fairfax Industrial District.

This court appointed Mr. Milton Zacharias of Wichita as commissioner to hear the evidence. The commissioner, in his advisory capacity (State ex rel. Fatzer v. Zale Jewelry Co., 179 Kan. 628, 298 P.2d 283), made findings of fact and conclusions of law and declared that the ordinance in question was invalid and that defendants (hereinafter referred to as the city or defendant city) should be ousted of all authority in the Fairfax area.

The facts, as found by the commissioner, are largely undisputed. Kansas City is a city of the first class with a population of less than 165,000. The Fairfax Industrial District sought to be annexed consists of approximately 2,300 acres of land in Wyandotte county, situated between the northeast boundary line of the city and the Missouri river. Of the district's total perimeter of 40,790 feet, 16,040 feet form a common boundary with Kansas City. A small portion of the boundary adjoins Quindaro township in Wyandotte county, while the remainder of the perimeter is formed by the Missouri river which bends around the district. To visualize the situation more clearly, reference is made to a drawing of the entire district in relation to the city, found in State ex rel. Fatzer v. City of Kansas City, 169 Kan. 702, 222 P.2d 714.

The district is an urban area with restrictive provisions in the warranty deeds granted by its developers limiting use of the land to manufacturing plants, warehouses and other types of businesses requiring railroad facilities. All but a hundred acres of the district has been sold to industrial firms and developed. Many of the employees of the industries located in Fairfax live in Kansas City. Streets in the district are constructed and connect generally to the public streets of Kansas City, with the exception of a connection across the Fairfax bridge to Platte county, Missouri. Kansas City has constructed various approaches to the district's roads. The district has its own sewers and dikes, and municipally owned utilities in Kansas City sell electricity and water to the Fairfax industries. Quindaro township and the industries within the district provide fire protection, although the Kansas City fire department has supplemented this service.

On these facts the commissioner concluded that there were substantial economic and sociological ties between the Fairfax area and Kansas City, and that 'The existence of the district and the recognition thereof by the city have been mutually advantageous to both.'

On June 2, 1925, purported plat of the Fairfax Drainage District, signed by representatives of the Kansas City Industrial Land Company, early developers of the industrial district, was filed with the office of the register of deeds of Wyandotte county. The plat, experssly filed for record 'for taxation purposes,' embraced 1,282 acres of the 2,300 acres of the industrial district. It indicated the ownership of various parcels of land but did not describe the property by blocks and lots. Conveyances within the industrial district, both before and after filing of this plat, were by metes and bounds and the land was carried on the county clerk's books by treat numbers, not by block and lot numbers. Ordinance No. 40,220, here in question, sought to incorporate the area by reference to metes and bounds, rather than by description of a subdivision platted into blocks and lots.

The city's attempt to annex a portion of the industrial district in ordinance No. 35,841, enacted April 4, 1949, was struck down by this court in State ex rel. Fatzer v. City of Kansas City, supra.

The statutory authority here invoked is found in G.S.1949, 13-1602 and 13-1602a, and G.S.1955 Supp. 13-1602a. The provisions of these statutes applicable here are identical and, in effect, set forth requirements which must be met by a city for four types of annexation. G.S.1955 Supp., 13-1602a provides:

'Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed * * * In adding territory to any city, if it shall become necessary for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres * * *'

The commissioner concluded that the statute contained four limited grants of authority and that the city failed to meet the requirements of any of them. He found that the purported plat, discussed supra, was not a subdivision into blocks and lots for purposes of applying the first section of the statute. He concluded that the area sought to be annexed was not within or mainly within Kansas City within the meaning of the statute and that the statutory requirements were in geographical terms and precluded consideration of economic and sociological factors. He noted that neither of the last two sections quoted, supra, was applicable, inasmuch as the area sought to be annexed was larger than twenty acres and was not sought for the purpose of making the city's boundary straight or harmonious. Finally, he concluded that the denial of the writ of quo warranto on grounds of hardship and inequity was not justified.

Following the announcement of the commissioner's report, plaintiff filed motions to confirm these findings and for judgment of ouster. Defendant city filed its motion to modify certain findings of fact and conclusions of law and for additional findings, as well as a motion for a new trial. The commissioner, upon hearing the motions, sustained plaintiff's motion for judgment and overruled defendant's motions, filing his report, together with transcript of the evidence and the exhibits, with this court. The case was regularly set for argument and was heard upon the briefs and oral arguments of the parties.

In this appeal, we are confronted with the construction and interpretation of the following two provisions of G.S.1955 Supp., 13-1602a: 'Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, * * * said lands * * * may be * * * taken into * * * such city by ordinance duly passed.'

At the outset, with relation to contentions later considered, it may be stated that the advisability of enlarging the territorial limits of the city is a legislative function which cannot be delegated to the court and if an ordinance annexing territory is attacked, the court's duty is only to determine whether under the facts the city has statutory authority to enact the ordinance. Ruland v. City of Augusta, 120 Kan. 42, 242 P. 456; State ex rel. Hawks v. City of Topeka, 175...