State ex rel. Stephan v. Board of County Com'rs of County of Lyon County, 55574

• Decision Date: 13 January 1984
• Docket Number: No. 55574,55574
• Citation: 234 Kan. 732,676 P.2d 134
• Parties: , 16 Ed. Law Rep. 317 STATE of Kansas, ex rel. Robert T. STEPHAN; Washburn University of Topeka; Allen County Community College, et al., Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LYON COUNTY, Appellant.
• Court: Kansas Supreme Court

Page 134

676 P.2d 134

234 Kan. 732, 16 Ed. Law Rep. 317

STATE of Kansas, ex rel. Robert T. STEPHAN; Washburn University of Topeka; Allen County Community College, et al., Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LYON COUNTY, Appellant.

No. 55574.

Supreme Court of Kansas.

Jan. 13, 1984.

Syllabus by the Court

1. Where a statute which clearly applies to the subject matter of a pending action is amended by the legislature while an appeal in the action is pending, and counsel for both sides have had an opportunity to brief and argue the amended statute, this court will consider and construe the most recent enactment.

2. Statutory construction is a matter of law. This court will construe a newly enacted statute even though the trial court has not had the opportunity to do so.

3. Article 2, section 17, of the Constitution of Kansas no longer prohibits special legislation.

4. Chapter 282 of the Laws of Kansas for 1982 is examined and found to contain but one subject, and thus not to be violative of article 2, section 16, of the Constitution of Kansas.

5. No legislative history or extrinsic evidence of how an act of the legislature evolved is necessary or relevant when the act contains no unrelated or unworthy matters and is clear and unambiguous on its face.

6. Counties have no constitutional basis for home rule; their authority in that area is dependent upon legislation.

7. A county, although required by law to pay out-district tuition to community colleges, has no standing to challenge the colleges' manner of operation and degree of compliance with state statutes.

Jay W. Vander Velde, of Atherton, Sanderson & Vander Velde, Emporia, argued the cause and was on the briefs, for appellant.

Rodney J. Bieker, Asst. Atty. Gen., argued the cause, and Dan Biles, Asst. Atty. Gen. and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee State of Kan.

Kenneth P. Hackler, Topeka, argued the cause and was on the brief, for appellee Washburn University of Topeka.

Robert V. Talkington, of Conderman & Talkington, Iola, argued the cause and was on the brief, for appellees Allen County Community College, et al.

MILLER, Justice:

This is an action in the nature of quo warranto, brought by the attorney general against the Board of County Commissioners of Lyon County to contest the validity of two charter resolutions enacted by the Board. The resolutions exempted Lyon County from paying, as required by certain statutes, out-district tuition to Kansas community colleges and municipal universities. The trial court held the resolutions unconstitutional, enjoined the implementation of the charter resolutions, and ordered the Board to continue paying out-district tuition as provided by law. The principal issues to be resolved are whether this court should consider a law enacted while this case was on appeal; whether that statute is controlling; and whether the statutes requiring the payment of out-district tuition are constitutional.

To put this controversy in proper perspective, we will first review the constitutional and statutory provisions applicable, together with the procedural history of this action. Article 6 of the Constitution of Kansas deals with the subject of education. It provides in applicable part as follows:

" § 1. Schools and related institutions and activities. The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.

" § 2. State board of education and state board of regents. (a) The legislature shall provide for a state board of education which shall have general supervision of ... educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents....

....

" § 6. Finance. (a) The legislature may levy a permanent tax for the use and benefit of state institutions of higher education and apportion among and appropriate the same to the several institutions, which levy, apportionment and appropriation shall continue until changed by statute. Further appropriation and other provision for finance of institutions of higher education may be made by the legislature.

"(b) The legislature shall make suitable provision for finance of the educational interests of the state."

Acting under authority of these constitutional provisions over sixty years ago, the Kansas Legislature authorized the establishment of junior colleges having a two-year course of post-high school study. See R.S.1923, 72-3301 et seq. "Junior colleges" and "community junior colleges" became "community colleges" pursuant to a statute enacted in 1980. See K.S.A. 71-120. These community colleges generally have as a tax base a taxing district consisting of one county or less, and the board of trustees of each community college is authorized to levy a tax on the taxable tangible property of the community college district. K.S.A. 71-204. In order to provide additional financial assistance to the community colleges, the legislature authorized each community college, under certain circumstances, to charge out-district tuition for each student attending the college whose residence is outside the community college district. Out-district tuition is paid by the board of county commissioners of the county of residence of the students who live outside of the community college district. See K.S.A.1982 Supp. 71-301.

Washburn University of Topeka, Kansas, is a municipal university. See K.S.A. 13-13a03 et seq. Its taxing district was originally co-extensive with the limits of the city of Topeka, Kansas. Later, the legislature authorized extension of the taxing district to include all of Shawnee County. See K.S.A. 13-13a24. Before 1982, there was no statutory authorization for Washburn University to charge or receive out-district tuition from other counties, although students attended it from various counties of the state.

Laws of Kansas 1982, chapter 282, became effective upon publication on May 20, 1982. This law spawned the charter resolutions enacted by the Board of County Commissioners of Lyon County, resulting in this litigation. Chapter 282 is entitled:

"An Act concerning certain institutions of postsecondary education; increasing the rate of out-district tuition charged to counties by community colleges; providing for increases in state aid to community colleges and municipal universities; authorizing the charging of out-district tuition by municipal universities and requiring the levy of taxes for payment thereof by taxing subdivisions; relating to the provision of instruction by community colleges and municipal universities under agreements with state agencies; amending K.S.A. 71-602, 71-607 and 72-6503 and K.S.A.1981 Supp. 71-301, and repealing the existing sections; also repealing K.S.A. 71-207, 71-208, 71-209, 71-303 and 71-307."

Chapter 282 is lengthy and need not be set forth in full; instead, we provide the following summary of its sections.

Section 1 amends K.S.A.1981 Supp. 71-301 and provides for and limits the charging of student tuition and out-district tuition by community colleges, and requires the boards of county commissioners to pay out-district tuition.

Section 2 amends K.S.A. 71-602 and prescribes to the state board of education the method for calculating credit hour state aid to be given community colleges.

Section 3 amends K.S.A. 71-607 and prescribes to the state board of education the method for calculating out-district state aid payments to be made to community colleges.

Section 4 amends K.S.A. 72-6503 and prescribes to the state board of education the method for calculating payments to be made to Washburn University from the municipal university fund of the state treasury.

Section 5 defines certain terms, including "municipal university district" and "taxing subdivision." This section is now K.S.A. 13-13a25.

Section 6 provides for, and limits, the charging of out-district tuition by any municipal university, commencing with the spring semester of 1983; and it requires boards of county commissioners and other "boards of levy" to pay such charges. This section is now K.S.A. 13-13a26.

Section 7 concerns the residence of students for the purposes of determining out-district tuition charges and out-district state aid entitlement. This section is now K.S.A. 13-13a27.

Section 8 entitles a municipal university to receive out-district state aid payments and prescribes to the state board of education the method for calculating these state aid payments. This section is now K.S.A. 13-13a28.

Section 9 specifies times at which, and persons and agencies by whom, a determination of credit hours of duly enrolled out-district students of the municipal university shall be made. (The number of credit hours of duly enrolled out-district students is one of the factors that is used to calculate both out-district tuition and out-district state aid. See K.S.A. 13-13a26.) This section is now K.S.A. 13-13a29.

Section 10 imposes duties and places restrictions upon the state board of education regarding distribution of out-district state aid entitlements of the municipal university. This section is now K.S.A. 13-13a30.

Section 11 imposes a limitation regarding the students for whom a municipal university may charge out-district tuition. This section is now K.S.A. 13-13a31.

Section 12 imposes another limitation regarding the students for whom a community college may charge out-district tuition. It also provides for an increase in out-district state aid entitlements of community colleges, if certain facts exist. This section is now K.S.A. 13-13a32.

Section 13 imposes duties upon the state board of education regarding matters necessary to determine out-district tuition charges that may be made by a...