State ex rel. Foster v. City of Kansas City

• Decision Date: 05 March 1960
• Docket Number: No. 41072,41072
• Citation: 350 P.2d 37,186 Kan. 190
• Parties: STATE of Kansas ex rel. Robert J. FOSTER, County Attorney of Wyandotte County, Kansas, Plaintiff, v. CITY OF KANSAS CITY, KANSAS, a Municipal Corporation; Paul F. Mitchum, 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; Phillips Petroleum Company, a Corporation, Union Pacific Railroad Company, a Corporation, Sealright-Oswego Falls Corporation, a Corporation, and Girten Investment Company, a Corporation, Petitioners for Leave to Intervene.
• Court: Kansas Supreme Court

Page 37

350 P.2d 37

186 Kan. 190

STATE of Kansas ex rel. Robert J. FOSTER, County Attorney of Wyandotte County, Kansas, Plaintiff, v. CITY OF KANSAS CITY, KANSAS, a Municipal Corporation; Paul F. Mitchum, 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 Phillips Petroleum Company, a Corporation, Union Pacific Railroad Company, a Corporation, Sealright-Oswego Falls Corporation, a Corporation, and Girten Investment Company, a Corporation, Petitioners for Leave to Intervene.

No. 41072.

Supreme Court of Kansas.

March 5, 1960.

Rehearing Denied April 13, 1960.

Syllabus by the Court

In an original proceeding in quo warranto commenced by the state, on the relation of the county attorney, a motion by the attorney general to intervene, supersede and dismiss, as is more fully narrated in the opinion, is considered and it is held: The corporations petitioning for leave to intervene are not proper parties (Smith v. City of Emporia, 168 Kan. 187, 211 P.2d 101, 136 A.L.R.2d 1272); the attorney general is entitled to intervene and supersede the county attorney in this court in cases involving the state or public interest; the attorney general, as an officer of this court, has the duty to limit his conduct to that prescribed by the code of professional ethics, and the governor, as principal executive officer of the state, cannot control the officers of this court, which heads up the judicial branch of our state government; the right of the attorney general, as plaintiff, to dismiss this action is absolute and the township, one municipality, cannot question the organization, or reorganization, of the city, another municipality, because that can only be done by the state through its proper officers. It is further held, the case is dismissed.

John Anderson, Jr., Atty. Gen., argued the cause, and Robert E. Hoffman and A. K. Stavely, Asst. Attys. Gen., were with him on the briefs, for plaintiff.

Leonard O. Thomas, of Kansas City, argued the cause, and J. D. Lysaught, Robert H. Bingham, Ervin G. Johnston, Thomas M. Van Cleave, James J. Lysaught, Williard L. Phillips, Thomas M. Van Cleave, Jr., J. E. Schroeder, and Lee E. Weeks, Kansas City, were with him on the briefs, for defendant Quindaro township.

J. W. Mahoney, of Kansas City, argued the cause, and C. W. Brenneisen, Jr., and George W. Haley, Kansas City, were with him on the briefs, for defendant City of Kansas City.

Thomas M. Lillard and O. B. Eidson, Topeka, and Nona E. Snyder, Kansas City, were on the briefs, for intervenor Union Pacific Railroad Co.

Leonard O. Thomas, Robert H. Bingham, and Ervin G. Johnston, Kansas City, were on the briefs, for intervenors Phillips Petroleum Co., Sealright-Oswego Falls Corp., and Girten Investment Co.

ROBB, Justice.

This original proceeding in quo warranto commenced by the state, on the relation of the county attorney, seeks to test the validity of certain ordinances of the city of Kansas City by requiring the defendant city officials, Mitchum, Swarner, and Regan, in their official capacity, to show by what authority they assumed a portion of the Fairfax industrial district and made it part of the city when they enacted and published certain ordinances annexing such land.

Two previous original quo warranto proceedings of similar character have been before this court. State ex rel. Fatzer v. City of Kansas City, 169 Kan. 702, 222 P.2d 714; State ex rel. Martin v. City of Kansas City, 181 Kan. 870, 317 P.2d 806.

The state filed its amended and supplemental petition naming the city, Mitchum, Swarner, Regan, and Quindaro township as defendants. On October 8, 1958, Quindaro township filed its answer admitting the allegations of the petition and referring in detail to the two previous cases above mentioned. It attacked the city's efforts to annex by ordinances the land in question, which is a part of Quindaro township. On October 28, 1958, the city and its named officials (hereafter referred to collectively as the city) by way of answer filed a general denial of the affirmative allegations in Quindaro's answer and a general demurrer thereto was incorporated into its answer. On the same day the city, in answer to the amended and supplemental petition of the state, admitted a major portion thereof and joined issue on the remainder. On November 13, 1958, the state filed a lengthy reply to the answer of the city. Since the merits of the case are not before us at this stage of the proceedings, we shall not detail the above-mentioned pleadings.

The parties failed to agree upon a stipulation of facts and as a result of a renewed application dated April 22, 1959, for appointment of a commissioner, this court on June 30, 1959, appointed the Honorable Jay W. Scovel of Independence, Kansas, as commissioner to hear the evidence, which procedure was the same as that followed in the two earlier cases previously referred to.

Donald E. Martin's term of office as Wyandotte county attorney expired in January, 1959, and his newly-elected successor, Robert J. Foster, assumed the duties of the office including the substitution of his name for that of Martin in this case. On July 22, 1959, the attorney general, under the directive set forth in the first part of G.S.1949, 75-702 (later quoted herein) filed a motion to intervene in the case, to supersede county attorney Foster, and to strike all references in the pleadings to Quindaro township, as well as its answer and cross petition, because the township had no justiciable interest, it was neither a necessary nor proper party, and its answer and cross petition had no lawful place in the proceeding. The attorney general further moved that in view of the expense to the taxpayers of past litigation on this annexation problem of the city, it would be in the public interest to terminate and dismiss the present action.

Acknowledgment of service by Foster was as follows:

'The undersigned County Attorney of Wyandotte County, Kansas, hereby acknowledges receipt of a copy of the foregoing Motion and states and he has read the same and lodges no objection to supersession by the Attorney General in such action. [Our emphasis.]

'/s/ Robert J. Foster, County Attorney of Wyandotte County, Kansas, Kansas City, Kansas.'

After service on it, Quindaro filed a formal objection to the attorney general's intervention because the matter was ready for trial before the commissioner and the attempted supersession was only to prevent submission of the controversy and prevent judicial determination of the rights of thousands of people.

At the same time Quindaro also filed its formal objection to the attorney general's motion to dismiss because if granted such motion would prevent Quindaro from furnishing essential government services to its 17,674 residents by permitting the ordinances under attack to stand as valid. The attorney general had moved to intervene eighteen months after commencement of the case and after the commissioner had fixed the date the hearing was to begin. Validity of the ordinances was of great importance to the taxpaying residents of Quindaro and the city. Due to the one year statute of limitation for filing such actions, (G.S.1959 Supp. 12-502c), the motion to dismiss was an attempt to secure final determination without a hearing on the merits. If permitted the attorney general's action would usurp the judicial power vested in the court and would thereby break down our traditional doctrine of separation of powers by substitution of one man's views for those of a duly-constituted court. The attorney general is without authority to interfere with the county attorney herein, and in the interest of justice the attorney general's motion should be overruled. Finally, it was claimed the attorney general's action violated sections 1 and 18 of the bill of rights and sections 1 and 2 of article 3 of our state constitution.

Quindaro also filed a motion for permission to maintain the action if the county attorney was held not to be able to do so. Quindaro alleged its readiness, willingness and ability to present the case to the commissioner.

The city filed its motion for judgment on the pleadings as against Quindaro because Quindaro had no legal capacity to sue, no material issue of fact was presented by its answer which admitted the allegations of the petition, and no valid cause of action or defense was stated as to the city.

At the hearing before the commissioner on August 17, 1959, Quindaro filed a motion to stay and substantially stated that on August 10, 1959, the governor had directed the attorney general not to dismiss the proceeding but to prosecute it and assure all parties an opportunity to present the issues to the commissioner and the court; that the attorney general had no authority to continue with his motions and they should be stayed and stricken.

The record discloses that Foster appeared and was present during the hearing of August 17, 1959, at the close of which he made the following statement:

'* * * I have an interest in the case as County Attorney, I have taken no affirmative action other than I have not objected to Mr. Anderson's motion to supersede me, because I believe that is my duty.'

At that time four corporations filed separate applications for leave to intervene as owners of land sought to be annexed. In brief, their principal complaint was that the ordinances had been passed and officially published without notice to them or opportunity to be heard, and if the ordinances were allowed to become effective, the corporations would be subject to city taxes, control and other burdens; and further, if subsequent to the commencement of the action and after eighteen months of waiting, the attorney general were allowed to carry out his purpose, the result would be the taking of each i...