Babcock v. Kansas City

• Decision Date: 05 November 1966
• Docket Number: No. 44682,44682
• Citation: Babcock v. Kansas City, 197 Kan. 610, 419 P.2d 882 (Kan. 1966)
• Parties: Warren H. BABCOCK, Appellant and Cross-Appellee, v. KANSAS CITY, Kansas, a Municipal Corporation, Joseph H. McDowell, Joseph P. Regan and Earl B. Swarner, Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 882

419 P.2d 882

197 Kan. 610

Warren H. BABCOCK, Appellant and Cross-Appellee, v.KANSAS CITY, Kansas, a Municipal Corporation, Joseph H McDowell, Joseph P. Regan and Earl B. SwarnerAppellees and Cross-Appellants.

No. 44682.

Supreme Court of Kansas.

Nov. 5, 1966.

Rehearing Denied Dec. 2, 1966.

Syllabus by the Court

1.The extension of the corporate limits of a city to include new territory, under statutory authority, is, in effect, a reorganization of the city, and an action attacking the legality of such reorganization attacks the corporate integrity of the city in the same manner as if the city's original organization were attacked.(Following Chaves v. City of Atchison, 77 Kan. 176, 93 P. 624.)

2. K.S.A. 60-1203, prescribing the name in which an action in quo warranto may be prosecuted, is construed, and it is held: (1) The addition of the words 'resolution' and 'ordinance' to the clause so that it now reads, 'or claiming an interest adverse to a resolution, ordinance, franchise, gift or grant,' was intended by the Legislature to broaden the field of the form of action and has reference to rights of action already existing, and did not create any new rights of action, and (2) its provisions do not authorize or empower a private individual to maintain an action questioning the validity of proceedings extending the corporate limits of a city and such an action may be prosecuted only at the instance of the state by its proper officers pursuant to K.S.A. 12-502c.

Charles W. Thompson, Kansas City, argued the cause, and Lloyd G. Alvery and James P. Lugar, Kansas City, were with him on the briefs, for appellant and cross-appellee.

Joseph A. Bukaty, Asst. Atty. Kansas City, argued the cause, and C. W. Brenneisen, Jr., City Atty., Matthew G. Podrebarac, City Counselor, James B. Flack and A. B. Howard, Asst. City Attys., all of Kansas City, were with him on the briefs for appellees and cross-appellants.

Albert B. Martin, Gen. Counsel, Wright W. Crummett and Wendell E. Yockey, Topeka, were on the brief of League of Kansas Municipalities as amicus curiae.

FATZER, Justice:

This was an action in the nature of quo warranto brought by the plaintiff, Warren H. Babcock, an individual, challenging the validity of seven annexation ordinances enacted by the city of Kansas City and published between February 11, 1965, and June 4, 1965, which substantially enlarged the city both as to population and area.

Issues were formed by the parties' pleadings and the case was tried to the district court of Wyandotte County, sitting en banc, upon the parties' written stipulation of facts.The five judges of the district court made unanimous findings of fact and conclusions of law from which both parties have appealed.

It is necessary to discuss and decide only the city's contention the district court erred in its conclusion of law that Mr. Babcock, as an individual, had 'the legal right to maintain this action.'For reasons hereafter stated, we conclude the district court erred in its conclusion of law, and hold that K.S.A. 60-1203 does not authorize or empower a private individual to maintain or prosecute an action questioning the validity of proceedings extending the corporate limits of a city and that such an action can be prosecuted only at the instance of the state by its proper officers.

Throughout the history of the jurisprudence of this state, this court has never permitted a private individual to bring an action attacking the legality of the corporate existence of a city, where the plaintiff's right to bring the action was properly challenged.Likewise, it has been uniformly held that the extension of corporate limits to include new territory, under statutory authority, is, in effect, a reorganization of the city, and an action attacking the legality of such reorganization attacks the corporate integrity of the city in the same manner as if the city's original organization were attacked.Moreover, the legality of the organization or reorganization of a city cannot be questioned in a collateral proceeding or at the suit of a private individual but must be prosecuted by the state acting through its proper officers.City of Topeka v. Dwyer, 70 Kan. 244, 78 P. 417;Atchison, T. & S. F. Railway Co. v. Board of Com'rs of Lyon County, 72 Kan. 13, 16, 82 P. 519, 84 P. 1031;Chaves v. City of Atchison, 77 Kan. 176, 93 P. 624;Gardner v. Benn, 81 Kan. 442, 105 P. 435;Price v. City of McPherson, 92 Kan. 82, 139 P. 1162;Horner v. City of Atchison, 93 Kan. 557, 144 P. 1010;Mason v. Kansas City, 103 Kan. 275, 173 P. 535;Wellman v. City of Burr Oak, 124 Kan. 780, 262 P. 607;Smith v. City of Emporia, 168 Kan. 187, 211 P.2d 101, 13 A.L.R.2d 1272.)The cases are legion on the point and the list of authorities is not intended to be exhaustive.

In Bishop v. Shawnee & Mission Tps. Turkey Creek Main Sewer District No. 1, 184 Kan. 376, 336 P.2d 815, the reason for the foregoing rule was to be well stated in Atchison, T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, at page 228, 6 P. 281, as follows:

"It would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation.Irregularities are common and unavoidable in the organization of such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons."(184 Kan. 1. c. 379, 336 P.2d 1. c. 818.)

The same general rule has been applied in situations where private individuals have endeavored to challenge the legality of the organization of school districts (Atchison T. & S. F. Rld. Co. v. Wilson, Treas., supra;Schur v. Rural High School District No. 1, 112 Kan. 421, 210 P. 1105;Scamahorn v. Perry, 132 Kan. 679, 296 P. 347;School District No. 14, v. Board of Shawnee County Com'rs, 153 Kan. 281, 110 P.2d 744), or made claims that drainage districts were illegally or invalidly organized (Union Pacific Railroad Co. v. Board of Com'rs of Leavenworth County, 89 Kan. 72, 130 P. 855;Euler v. Rossville Drainage District, 118 Kan. 363, 235 P. 95;Kimmel v. Wolf River Drainage Dist., 138 Kan. 209, 25 P.2d 585), or sought to enjoin alleged illegal levies of ad valorem taxes pursuant to G.S.1949, 60-1121 (now repealed) or K.S.A. 60-907, where the action is based upon alleged illegality or irregularity of the organization of the municipality or district levying the taxes.(Atchison, T. & S. F. Rld. Co. v. Wilson, Treas., supra;Schur v. Rural High School District No. 1, supra;Wellman v. City of Burr Oak, supra;St. Joseph & G. I. Railway Co. v. School District No. 2, 114 Kan. 67, 217 P. 296;Shaffer v. Board of Ford County Comm'rs, 133 Kan. 256, 299 P. 613.)However, in Schulenberg v. City of Reading, 196 Kan. 43, 51, 410 P.2d 324;K.S.A. 60-907 was construed to permit private individuals to attack ordinances creating a district which had no attributes of corporate existence and levied no taxes.

In one form or another, commencing with Craft v. Jackson County Com'rs5 Kan. 518*, 313, decided in 1870, to Schulenberg v. City of Reading, supra, decided in 1966, the rule that a private individual cannot challenge municipal procedure and organization has been undeviatingly followed, unless the plaintiff's right to bring the action was not properly challenged.In this connection, the court's opinion in Smith v. City of Emporia, supra, cited the cases of Stewart v. Adams, 50 Kan. 560, 32 P. 122;Eskridge v. City of Emporia, 63 Kan. 368, 65 P. 694, andBrown v. Junction City, 122 Kan. 190, 251 P. 726 and stated:

'Appellant insists that Stewart v. Adams * * * and Brown v. Junction City * * * require a decision contrary to the one we have heretofore announced.Without laboring what was said or held in those cases it will be noted that the question of the plaintiff's lack of capacity to maintain the action was neither raised nor passed on.For that reason they are not decisive here.The same is true of Eskridge v. City of Emporia. * * *'(1. c. 193, 211 P.2d 1. c. 105.)

In the recent case of James v. City of Pittsburg, 195 Kan. 462, 407 P.2d 503, a private individual challenged the city's annexation of adjacent land, and in the opinion it was said:

'* * * Inasmuch as the city gave no notice of cross-appeal, as provided by statute, its contention, as we have heretofore stated it (that plaintiffs are not the proper parties to maintain this action), is not properly before us and may not be considered.'(1. c. 463, 407 P.2d 1. c. 505.)

As indicated by our numerous decisions, the foregoing rule of universal application has been examined and re-examined with great care and has always been reaffirmed; it is said to be founded upon public policy and has been consistently applied regardless of whether the procedure was a direct attack upon annexation such as here presented (Smith v. City of Emporia, supra;State ex rel. Foster v. City of Kansas City, 186 Kan. 190, 350 P.2d 37) or an indirect or collateral attack upon annexation such as in City of Topeka v. Dwyer, supra.The rule has been held applicable to all types of actions attacking the legality of corporate existence of cities and districts regardless of whether the attacking procedure was injunction (Chaves v. City of Atchison, supra), quo warranto (State ex rel. Foster v. City of Kansas City, supra), declaratory judgment (Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 374 P.2d 35), appeals from an order of the Board of County Commissioners (Lampe v. City of Leawood, 170 Kan. 251, 225 P.2d 73), habeas corpus (In re Short, Petitioner, 47 Kan. 250, 27 P. 1005), or criminal defense (City of Topeka v. Dwyer, supra).

Since it is clear from our decisions that the foregoing rule prohibits private individuals from maintaining actions attacking the validity of proceedings extending the corporate limits of a city, it is necessary to examine the new Code of Civil Procedure, and...