Board of Com'rs of Sedgwick County v. Robb

• Decision Date: 13 November 1948
• Docket Number: 37477,37478.
• Citation: 199 P.2d 530,166 Kan. 122
• Parties: BOARD OF COUNTY COM'RS OF SEDGWICK COUNTY v. ROBB (BIG SLOUGH DRAINAGE DIST. OF SEDGWICK COUNTY et al., Intervenors). CITY OF WICHITA v. ROBB (BIG SLOUGH DRAINAGE DIST. OF SEDGWICK COUNTY et al., Intervenors).
• Court: Kansas Supreme Court

199 P.2d 530

166 Kan. 122

BOARD OF COUNTY COM'RS OF SEDGWICK COUNTY v. ROBB (BIG SLOUGH DRAINAGE DIST. OF SEDGWICK COUNTY et al., Intervenors).

CITY OF WICHITA v. ROBB (BIG SLOUGH DRAINAGE DIST. OF SEDGWICK COUNTY et al., Intervenors).

Nos. 37477, 37478.

Supreme Court of Kansas

November 13, 1948

Rehearing Denied Dec. 20, 1948. [Copyrighted Material Omitted]

Syllabus by the Court.

1. The legislature has power to create drainage and flood control districts and when the nature of the case does not conclusively fix it, the power to determine what shall be a taxing district for a particular project is a legislative power, restricted only by constitutional limits.

2. The legislature may exercise its discretion in fixing a taxing district and its action in so doing is not open to judicial inquiry unless it is wholly unwarranted and a flagrant abuse and by its arbitrary character is a mere confiscation of particular property.

3. Benefits to a taxpayer conferred under drainage and flood control projects may be direct or tangible, or they may be indirect and intangible where they redound to the benefit of the whole taxing district in which he is a taxpayer.

4. If a law of general form operates uniformly on all members of the class to which it applies, it is not open to the objection it is a special law if the classification is not an arbitrary and capricious one, nor in such case does it contravene Art 2, § 17, of the Constitution of the of the State of Kansas.

5. The legislature has power to pass laws which apply to and operate uniformly on all members of a class, but the classification must be natural and genuine. The classification cannot be an arbitrary or fictitious one but must be based upon distinctions which have a reasonable and substantial relation to the subject matter involved. State, ex rel., Bushey v Allen County Com'rs., 156 Kan. 248, 133 P.2d 165.

6. Drainage districts and townships are creatures of the legislature and neither has any rights, in a case such as is set forth in the opinion, that the legislature may not alter at its pleasure.

7. The record examined in a mandamus proceeding, and questions of law submitted are answered, and it is held that Laws 1945, Ch. 391, as amended, and appearing as G.S.1947 Supp. 19-3301 et seq., is not unconstitutional because in contravention of the Fourteenth Amendment of the Constitution of the United States, or in contravention of Act. 2, §§ 1 and 17, Art. 11, § 1, and Art. 12, § 4, of the Constitution of the State of Kansas, for any of the reasons assigned, nor is the act otherwise invalid on account thereof.

W. F. Lilleston and Wayne Coulson, both of Wichita, (L. A. Hasty, Fred W. Aley, Lawrence E. Curfman and Howard T. Fleeson, all of Wichita, on the brief), for plaintiffs.

Edward F. Arn, Atty. Gen., and William Paul Timmerman, Asst. Atty. Gen., for defendant.

W. D. Jochems and J. Wirth Sargent, both of Wichita, (Emmet A. Blaes, Roetzel Jochems, Robert G. Braden and S. C. Durbin, all of Wichita, on the brief), for intervenors.

THIELE Justice.

The questions herein determined arise out of two applications for writs of mandamus. Acting under the authority of Laws 1945, Ch. 391, as amended by Laws 1947, Ch. 202, now appearing as G.S.1947 Supp. 19-3301 et seq., and usually referred to hereafter as Ch. 391, Sedgwick County and the City of Wichita each issued one temporary note under the provisions of G.S.1947 Supp. 10-123, and presented it to the auditor of the State of Kansas for registration, preliminary to its sale under the requirements of G.S.1935, Ch. 10, Art. 1, and such registration being refused the instant proceedings were commenced originally in this court by each of the above municipalities.

In a preliminary way it may be said that in each case the principal question raised is the constitutionality of Ch. 391, and as later appears the questions for decision are generally common to each proceeding. For convenience the Constitution of the United States will be referred to as the federal constitution and the Constitution of Kansas as the state constitution. There is no contention that the proceedings leading up to the issue of each note are irregular if Ch. 391 authorizing them is valid, and we do not note those proceedings which are alleged in some detail in the applications for the writs of mandamus. Alternative writs were issued directing the auditor to register the notes or to show cause why he should not, and he has answered alleging in substance that Ch. 391 is unconstitutional and void because in contravention of Art. 11, § 1, of the state constitution providing for a uniform rate of taxation, in contravention of the Fourteenth Amendment of the federal constitution and the above provision of the state constitution because it permits taxation of property not subject to flood hazard, and in contravention of Art. 2, § 17, of the state constitution as being special legislation where a general law could have been made applicable, and, insofar as the county is concerned, that Ch. 391, § 2, requires the city clerk and the city treasurer to act for the county and is an unlawful delegation of power.

Three drainage districts of Sedgwick County, six townships of the county and seven individuals alleging themselves to be taxpayers in the county, were given leave to intervene, and filed a common answer in both proceedings alleging facts with reference to the situation of each intervenor, making certain admissions and denials, raising the same constitutional objections as are included in the auditor's answer, and alleging further the statute violates Art. 12, § 4, of the state constitution pertaining to appropriation of rights of way.

With the issues thus joined the plaintiffs moved the court to determine in advance of trial, issues of law as stated in thirteen specified questions.

These question were fully argued orally and are fully discussed in the printed briefs. It is not necessary that they be set forth. What is said hereafter under appropriate reference covers the matters urged.

A brief review of the statute involved discloses that the title to Ch. 391 as originally enacted in 1945 was, 'An act relating to the construction of flood control works in certain counties and cities' and that by section one it is effective in 'any county of the state of Kansas traversed or touched by the Arkansas river'. The act provides that where the federal government undertakes flood control works within the county, the board of county commissioners may enter into certain undertakings with the federal government to hold the United States of America free from any damage; to maintain, keep in repair and operate the flood control works and to furnish the necessary lands, rights of way and easements. Right of eminent domain is conferred upon the county 'to be exercised in the manner prescribed by article 2 of chapter 26 of the General Statutes of 1935 and acts amendatory thereof or supplemental thereto.' Provision is made for the issuance of bonds to pay the cost of acquiring rights of way or easements, and for the issuance of bonds without an election, the aggregate of such bonds not to exceed one-half of one percent of 'the assessed valuation of the county', and it is the duty of the board of county commissioners 'to make an annual levy on all the taxable property in such county for the retirement' of the bonds. It is also provided that for the purpose of maintaining and operating such flood control works as shall be constructed by the United States, the board of county commissioners shall be empowered 'to make an annual tax levy upon all of the tangible property within said county'. The last section of the act as originally enacted stated that except as therein otherwise expressly provided, all rights, powers, authority and jurisdiction conferred on counties and boards of county commissioners, are also conferred upon and vested in any city located in any county such as described in the act and upon the governing body thereof. This section was amended in 1947. For present purposes, however, it is noted the important difference between counties and cities is in the percentage of the amount of bonds that may be issued, and in the rate for which taxes may be levied to provide funds for maintenance and operation. For acquisition of lands, rights of way and easements, the city 'may issue general obligation bonds of the city to pay the costs thereof and expenses connected therewith in the manner now provided by law' and for the purpose of maintenance and operation 'the governing body of such city shall be empowered to make an annual tax levy upon all the taxable tangible property within said city'. A reference to the entire act will disclose that the construction of any flood control works is determined and performed by the United States, the county or city entering into agreement (1) to hold the United States free from damage to persons or property resulting from construction or after completion, (2) to maintain and operate the works, and (3) to furnish all necessary lands, rights of way and easements, all as provided in the statute. The county, or city as the case may be, does not determine the extent or cost of the improvement, nor does it tax anyone therefor other than as stated. It may also be noted that there is no provision in the act for making special assessments upon any real estate that may be benefited by the improvement and in proportion to such benefit. Whether the act fixes the entire county or the entire city as a taxing district to pay demands upon it under the act, is noticed later.

In asking this court to rule on the questions submitted, the obvious purpose is to procure a declaration as to the soundness and validity of the several claims of...