Application for Incorporation as The City of Sherwood, Matter of

• Decision Date: 01 May 1987
• Docket Number: No. 60049,60049
• Citation: 736 P.2d 875,241 Kan. 396
• Parties: In the Matter of the APPLICATION for INCORPORATION AS a City of the Third Class to Be Known as "THE CITY OF SHERWOOD," Shawnee County, Kansas.
• Court: Kansas Supreme Court

Page 875

736 P.2d 875

241 Kan. 396

In the Matter of the APPLICATION for INCORPORATION AS a City of the Third Class to Be Known as "THE CITY OF SHERWOOD," Shawnee County, Kansas.

No. 60049.

Supreme Court of Kansas.

May 1, 1987.

Syllabus by the Court

In an appeal from an order of the district court granting summary judgment to the Board of County Commissioners of Shawnee County, Kansas and the City of Topeka in an appeal from an order of the Board which denied a petition to incorporate the City of Sherwood, the record is examined and it is held: The trial court did not commit error in finding (1) that appellant had standing to prosecute the appeal; (2) that K.S.A.1986 Supp. 15-123 is not unconstitutional as an unlawful delegation of legislative authority or as a violation of equal protection or due process of law; and (3) the decision of the Board was not arbitrary or capricious. It is further held the trial court did not commit error in granting summary judgment.

John R. Hamilton, of Hamilton & Hannah, of Topeka, argued the cause and Larry E. Gregg, of Gregg, Barker and Johnson, of Topeka, was with him on the briefs, for appellant, Clyne Foust.

Douglas F. Martin, County Counselor, argued the cause and was on the brief, for appellee Board of County Com'rs of Shawnee County.

Richard E. Jones, Deputy City Atty., argued the cause and was on the brief, for appellee City of Topeka.

HOLMES, Justice:

This is an appeal by Clyne Foust (appellant) from an order of the district court granting summary judgment to the Board of County Commissioners of Shawnee County (Board) and the City of Topeka (Topeka) in an appeal by Mr. Foust from an order of the Board which denied a petition to incorporate the City of Sherwood.

The area sought to be incorporated lies southwest of Topeka. Nine hundred forty residents of the area filed a petition pursuant to K.S.A. 15-115 et seq. for the area to be incorporated as a third-class city to be known as The City of Sherwood. Hearings were held at which all three Shawnee County Commissioners participated, and on May 14, 1986, the Commissioners voted two-to-one in favor of granting incorporation. Commissioner Velma Paris cast the "No" vote. As the area sought to be incorporated lies within five miles of the city limits of Topeka, a unanimous decision by the Board was required under K.S.A.1986 Supp. 15-123. On appeal to the district court, the City of Topeka was allowed to intervene.

At the outset, Topeka and the Board contend that appellant lacks standing to bring this appeal based upon the argument that, as Mr. Foust had originally sought to proceed under the incorporation statutes, K.S.A. 15-115 et seq., he has waived his right to challenge the constitutionality of the statutes. See Willoughby v. Willoughby, 178 Kan. 62, 283 P.2d 428 (1955). The trial court found that appellant did not lack standing in this case. K.S.A. 1986 Supp. 15-126(a) specifically provides that "[a]ny person who has an interest in or is aggrieved by the decision of the board of county commissioners ... may appeal to the district court." The specific statute granting authority to appeal prevails over the general rule of law that one who seeks affirmative relief under a statute cannot subsequently claim the statute is unconstitutional. We find the appellees' assertion that appellant lacks standing to bring this appeal to be without merit. We now turn to the issues raised by the appellant.

Appellant asserts the unanimity requirement of K.S.A.1986 Supp. 15-123 is unconstitutional because (1) it is an unlawful delegation of legislative authority, (2) it violates the equal protection clause, and (3) it violates the due process clause. The portion of the statute asserted to be unconstitutional reads:

"In addition to other requirements, if any of the territory wholly within one county is within five miles of an existing city, the territory shall not be incorporated except by the unanimous vote of the commissioners."

The general rule applicable to a constitutional challenge of a statute has often been stated by this court. In City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. pp 1-4, 598 P.2d 1051 (1979), we held:

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution."

"In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done."

"Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt."

"The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere."

Appellant contends the quoted portion of the statute results in the delegation of legislative power not to the Board, but to one commissioner who, acting alone, can prevent a unanimous vote for incorporation by overriding the decision of the majority of the board. The Kansas Constitution provides:

Art. 2, § 21. "Delegation of powers of local legislation and administration. The legislature may confer powers of local legislation and administration upon political subdivisions."

Art. 12, § 5. "Cities' power of home rule. (a) The legislature shall provide by general law, applicable to all cities, for the incorporation of cities...."

K.S.A. 15-115 provides:

"It is the purpose of this act to provide by general law for the incorporation of all cities, as required by section 5 of article 12, of the state constitution."

Cities and counties are political subdivisions of the state upon which the legislature may confer legislative power. Koppel v. City of Fairway, 189 Kan. 710, 712, 371 P.2d 113 (1962). Appellant does not contend that the legislature cannot delegate the authority to control incorporation of cities to the counties but instead argues that the delegation here is to one individual rather than to the Board. We have found no authority supporting appellant's contention and he has supplied none.

The legislature, in its wisdom, has adopted numerous statutes which require more than a simple majority vote in matters determined by legislative bodies. Among them are K.S.A. 19-2907, K.S.A.1986 Supp. 19-2920, and K.S.A. 75-3713 et seq. Here, K.S.A.1986 Supp. 15-123 requires a unanimous vote of the board. That board is comprised of several individuals. By statute, those individuals are required to consider certain factors set forth by the legislature in determining whether to grant the incorporation. K.S.A. 15-121. There is a presumption that members of the board, as public officials, act faithfully and properly in the discharge of their duties. City of Wichita v. Board of Sedgwick County Comm'rs, 232 Kan. 149, 158, 652 P.2d 717 (1982).

Combined Investment Co. v. Board of County Comm'rs, 227 Kan. 17, 605 P.2d 533 (1980), involved an appeal from the denial of an application for a zoning change pursuant to K.S.A. 19-2920. In discussing the unanimity requirement of the statute as it affected the scope of review on appeal, we stated:

"Whether zoning action is taken by one, three, or a dozen people sitting as a board, commission, or authority is immaterial; what is important and controlling under our law is that the action taken must not be arbitrary, capricious or unreasonable. Here the vote of one commissioner controlled the action of the commission; by the vote of Commissioner Mauk the motion to allow the change was defeated. The action of the commission as a whole--controlled by that single vote--was to deny the petition for change. The action of the commission must be reasonable, and is subject to review on that basis, whether the action resulted from a minority or a majority vote. Technically, the district court was reviewing the action of the commission, not the vote of a single commissioner; but the vote of that commissioner controlled the action of the commission; it was the action of the commission; and any error in terminology notwithstanding, it was the action of the commission which the court held to be arbitrary and unreasonable." At p. 29, 605 P.2d 533. (Emphasis in original.)

The same situation exists here. Although incorporation was denied as a result of the vote of only one commissioner, the action taken was that of the Board and not that of the one dissenting commissioner.

The requirement of a unanimous vote by the board of county commissioners when the area in question is within five miles of an existing city is not an unconstitutional delegation of legislative authority. Each individual commissioner casts his or her vote after considering the mandatory statutory factors, among other things, to determine the issue of incorporation. The legislature has provided mandatory guidelines and it cannot be said that requiring a unanimous vote on a matter of such important local concern as incorporation of an additional city is an unlawful delegation of legislative authority.

Next appellant argues the unanimity requirement of the statute violates the concepts of equal protection and substantive due process as promulgated by the Fourteenth Amendment of the United States Constitution and sections one, two, and eighteen of the Bill of Rights of the Kansas Constitution. These issues will be considered together as, under the facts of this case, the applicable test to determine constitutionality...