Barten v. Turkey Creek Watershed Joint Dist. No. 32 of Dickinson and Marion Counties

• Decision Date: 06 March 1968
• Docket Number: No. 44932,44932
• Citation: Barten v. Turkey Creek Watershed Joint Dist. No. 32 of Dickinson and Marion Counties, 438 P.2d 732, 200 Kan. 489 (Kan. 1968)
• Parties: Royal BARTEN et al., Appellants and Cross Appellees, v. TURKEY CREEK WATERSHED JOINT DISTRICT NO.32 OF DICKINSON AND MARION COUNTIES, Kansas, Appellee and Cross Appellant, and Grant Engle et al., Appellees.
• Court: Kansas Supreme Court

Page 732

438 P.2d 732

200 Kan. 489

Royal BARTEN et al., Appellants and Cross Appellees, v. TURKEY CREEK WATERSHED JOINT DISTRICT NO.32 OF DICKINSON AND MARION COUNTIES, Kansas, Appellee and Cross Appellant and Grant Engle et al., Appellees.

No. 44932.

Supreme Court of Kansas.

March 6, 1968.

Syllabus by the Court

1. In an action to enjoin a Watershed District and the individual members of its board of directors from putting into operation the proposed method of financing the General Plan of improvement for flood control, the provisions of K.S.A. 24-1214 and K.S.A. 24-1219 are construed to be in harmony and authorize the adoption of a method of financing by an annual levy of a general tax of not to exceed two mills 'to create a general fund for the payment of engineering, legal, clerical, land and interests in land, installation maintenance, operation and other administrative expenses.'

2. When a statute is susceptible to more than one construction, it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute.

3. The legislature has declared in K.S.A. 24-1201a that the formation of Watershed Districts to control floodwaters will inure to the general benefit of all of the taxable, tangible property included within such Watershed Districts.

4. On the facts disclosed in the opinion, the method of financing adopted by the resolution of the Watershed District's board of directors is held not to violate the Cash-Basis Law or the Budget Law of this state.

5. On judgment for the plaintiff in a mandamus action, the plaintiff may in the same proceeding recover such damages as he has actually sustained through the wrongdoing of the defendant; and the damages recoverable are the injuries sustained as the natural and probable consequences of the wrongful refusal to comply, and the expense reasonably and necessarily incurred in compelling compliance, including reasonable attorneys' fees. The test as to whether the plaintiff is entitled to recover reasonable attorneys' fees as part of his damages is whether the refusal of the defendant to perform the duty imposed by law is reasonable under all of the confronting facts and circumstances. If the refusal to perform the duty is found to be unreasonable, the plaintiffs' attorneys' fees are recoverable as damages under K.S.A. 60-802(c).

6. Where the facts disclose that proper petitions requesting an election on the method of financing the costs of improvement set forth in the General Plan of a Watershed District are filed with the secretary of the board of directors of the District within the time prescribed by statute, and the District refuses to hold such election but subsequently confesses judgment in a mandamus proceeding, it is held: The finding of the trial court, that the refusal of the board of directors of the Watershed District to hold such election was unreasonable under all of the confronting facts and circumstances, is sustained by the record, and the trial court did not err in allowing damages to the plaintiffs to compensate the plaintiffs' attorneys in prosecuting the action.

7. A confession of judgment standing alone does not relieve the defendant in a mandamus action from the payment of damages, including attorneys' fees.

Theodore C. Geisert, Kingman, argued the cause, and Max M. Hinkle, County Atyy., was with him on the brief for appellants and cross appellees.

Elvin D. Perkins, Emporia, argued the cause, and John H. Lehman, D. V. Romine and William A. Guilfoyle, Abilene, and Everett E. Steerman and Keith A. Greiner, Emporia, were with him on the brief for appellees and cross appellant.

Harry T. Coffman and J. Stephen Jones, Lyndon, were on the brief for appellees, amici curiae.

SCHROEDER, Justice.

This is an action to enjoin a Watershed District and the individual members of its board of directors from putting into operation the proposed method of financing the General Plan of improvement on the ground that it alleged to be unlawful. If the method of financing was held to be lawful the petition sought mandamus to force the holding of an election on such method of financing only.

The trial court sustained the Watershed District's motion for summary judgment as to the method of financing, and ordered the Watershed District to pay attorneys' fees to the attorneys for the plaintiffs. Whereupon, appeal was duly perfected by the parties to this action from each of the orders adverse to them.

The questions presented stem from whether the method of financing proposed by the Watershed District is lawful under the statutes of Kansas, and whether it was proper for the trial court to allow attorneys' fees to the plaintiffs' attorneys on the facts in this case.

The facts upon which the appeal is based are established by the pleadings, answers to requests for admissions, and answers to interrogatories. The material facts are uncontroverted.

The Turkey Creek Watershed Joint District No. 32 of Dickinson and Marion Counties, Kansas (defendant-appellee and cross appellant) is a municipal corporation organized under and governed by K.S.A. 24-1201 et seq. For the sake of brevity, it will hereinafter be referred to as the District. The residence of the District is in Dickinson County, Kansas. The individual plaintiffs (appellants-cross appellees) are all landowners in the defendant District. the state of Kansas on the relationship of the county attorney of Dickinson County, Kansas, also joined as a plaintiff in the action. The individual defendants (appellees), together with the plaintiff William Kingsbury, were the members of the board of directors of the defendant District when the action was filed.

On the 6th day of May, 1965, the board of directors of the District pursuant to K.S.A. 24-1213 passed a resolution adopting a General Plan dated January, 1965, which was prepared by qualified engineers for the installation of flood prevention works in the Watershed District.

The resolution adopting the General Plan recited that the District 'will execute an Agreement with the Soil Conservation Service, United States Department of Agriculture, which Agreement will provide for cooperation of the Federal Government in the installation of works of improvement for flood prevention and other purposes.'

On the same date (May 6, 1965) the board of directors of the District passed another resolution adopting as official the method of financing costs of the works contemplated in the General Plan. This second resolution was published pursuant to K.S.A. 24-1215 and recited:

'1. The funds necessary to finance the installation, maintenance and operation of the proposed works of improvement estimated to cost ninety-seven thousand nine hundred dollars ($97,900.00) for a ten year installation period, shall be obtained by an annual levy upon all taxable tangible property within the District without issuance of bonds.' (Emphasis added.)

In the adoption of this resolution on the method of financing the District relied upon K.S.A. 24-1219. The resolution also directed that:

'* * * the Secretary of the District is hereby directed to publish this resolution pursuant to the provisions of Section 24-1215, Kansas Watershed District Act, and said resolution shall be in full force and effect thirty (30) days after said publication unless petitions signed by landowners of the District in a number in amounts of twenty percent (20%) of the landowners as determined by the verified enumeration filed with the petition for organization are filed with the Secretary of the Board at his office at Rural Route #2, Abilene, Kansas.'

On the 24th day of May, 1965, the board of directors of the District passed a resolution authorizing its president to execute the Watershed Work Plan Agreement with the Soil Conservation Service, and the agreement was thereafter executed.

Before going into more detail as to the facts, it would facilitate an understanding of the issues to give the general background of state and federal legislative enactments which brought about this litigation.

The issues herein stem from an amendment to the Watershed District Act (now appearing as K.S.A. 24-1201 et seq.) made by the legislature in 1961. (L.1961, ch. 193.) Prior to this time the original Kansas Watershed District Act contemplated project financing separate and distinct from the general fund. (See, G.S.1953 Supp. 24-1216 and 24-1219.) That is, the entire cost of works of improvement undertaken by watershed districts was to be financed under the provisions of the act by a general tax levy against all of the taxable tangible property within the District and/or by special assessment against lands within the District to be specially benefited, pursuant to G.S.1953 Supp. 24-1216, and amendments thereto prior to 1961.

It is apparent the 1961 amendment to the Kansas Watershed District Act was prompted by an enactment of the Federal Congress, Public Law 566, 83rd Congress, 68 Stat. 666, approved August 4, 1954, known as the Watershed Protection and Flood Prevention Act. (16 U.S.C.A. §§ 1001-1008.) This act authorized the Secretary of Agriculture to cooperate with state and local agencies in the planning and carrying out of works of improvement for soil conservation and for other purposes. As applied to the facts in this case, the act authorized the Secretary of Agriculture, upon application, to assist local watershed districts authorized by law to carry out, maintain and operate the works of improvement. The Secretary of Agriculture was authorized to conduct investigations and surveys as may be necessary to prepare plans for works of improvement; to make such studies as may be necessary for determining the physical and economic soundness of plans for works of improvement; to cooperate and enter into agreement with and to furnish financial and other assistance to local...