Brown v. City of Topeka

• Decision Date: 11 December 1937
• Docket Number: 33615.
• Citation: 146 Kan. 974,74 P.2d 142
• Parties: BROWN et al. v. CITY OF TOPEKA et al.
• Court: Kansas Supreme Court

74 P.2d 142

146 Kan. 974

BROWN et al. v. CITY OF TOPEKA et al.

No. 33615.

Supreme Court of Kansas

December 11, 1937

Syllabus by the Court.

A city had implied authority, under specific statutory powers given to cities, to change name of street in city, where change was made by an ordinance which was not an arbitrary or capricious exercise of power, notwithstanding absence of specific legislative grant of authority to make change (Gen. St.1935 12-101, subd. 4, 12-602, 12-603, 13-401, 13-412, 13-423 13-434, 13-443, 13-1023, 26-201).

The owners of lots abutting on street, the name of which was changed by city ordinance, had no vested property right in name of street, and change of name did not deprive them of their property without due process (Const.Kan.Bill of Rights § 1; Const. U.S. Amend. 14).

Rights are "vested" when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. On the other hand, a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a "vested right."

The authority to name and rename streets in cities of this state when done under circumstances that are not unreasonable, and by a municipal ordinance that is not an arbitrary or capricious exercise of municipal power, is (1) necessarily implied in the powers specifically given to cities by the Legislature of this state, and (2) such change of name does not deprive the owners of lots on the street of any vested or property right without due process or compensation in violation of section 1 of the Bill of Rights of the Constitution of Kansas or the Fourteenth Amendment to the Constitution of the United States.

Appeal from District Court, Shawnee County, Division No. 2; Paul H. Heinz, Judge.

Action by Dana C. Brown and others against the City of Topeka and others. From an adverse judgment, plaintiffs appeal.

Judgment affirmed.

HARVEY, J., dissenting.

Thomas Amory Lee, A. Harry Crane, Phillip C. Gault, and Clayton M. Davis, all of Topeka, for appellants.

Ralph W. Oman, City Atty., and William A. Dumars, Asst. City Atty., both of Topeka, for appellees.

HUTCHISON Justice.

This action was brought by a number of owners of property abutting on McVicar street in the City of Topeka who resided thereon, to enjoin the City of Topeka from changing the name of McVicar street to Washburn avenue, which it had attempted to do by ordinance passed by the city on July 16, 1935, claiming (1) that there was no legislative grant of authority to the city commissioners to pass and enforce such an ordinance; (2) that the plaintiff property owners on the street have a vested property right in the name of the street of which the ordinance deprives them without due process and compensation and in violation of the Bill of Rights of the Constitution of the State of Kansas and the Fourteenth Amendment to the Constitution of the United States; and (3) that said ordinance by its terms was an arbitrary, capricious, unjust, and unreasonable exercise of municipal power.

This case was here once before and is reported in 144 Kan. 66, 58 P.2d 64. At that time it came up on an appeal by the plaintiffs from the order of the trial court sustaining a general demurrer of the city to the petition of the plaintiffs, and this court reversed that ruling wholly on the ground that the allegations concerning the third point above stated were not all conclusions of law but some of them were entitled to be termed "alleged facts" when attacked by a general demurrer which admits for the time being the truth of the facts alleged.

Upon the case being remanded and the demurrer being overruled for the reasons above stated, the city filed its answer to the petition which admitted allegations about the plaintiffs being citizens and owners of property, that the city was one of the first class, and that the officers of the city, as named in the petition, were such officers, and denied generally all other allegations and especially the allegations as to the passage of the ordinance changing the name of McVicar street being unjust, unreasonable, arbitrary, or capricious, and that it was done without notice and opportunity for protest.

Upon the trial evidence was introduced by both parties, and the court made the following findings of fact:

"(a) The plaintiff property owners on McVicar avenue have no vested rights in the name of said street under the laws of this state,

"(b) The powers delegated to the city by the legislature are broad enough to empower the city to regulate and control the streets of the city to the extent that it may name or rename the streets of the city of Topeka, and

"(c) The governing body of the city of Topeka did not act arbitrarily in the passage of said ordinance, and said ordinance by its terms was not an arbitrary or capricious exercise of municipal power. * *"

From these findings and the judgment rendered thereon, other than the third finding, the plaintiffs appeal after having presenteda motion for new trial, which was overruled.

The first point urged by the appellants is that there is no legislative grant of authority to the city commission to sustain the ordinance changing the name of the street.

It was held in State ex rel. v. City of Coffeyville, 127 Kan. 663, 274 P. 258, 63 A.L.R. 610: "Municipal corporations are creations of law, and can exercise only powers conferred by law and take none by implication." Syl. par. 1.

This matter as to the limitation of legislative power and authority of cities in this state has been regularly recognized from the earliest days of statehood, as decided in City of Leavenworth v. Rankin, 2 Kan. 357, and regularly affirmed to this time. It was given special consideration shortly before the decision in the Coffeyville Case, supra, in the case of City of Mankato v. Jewell County Com'rs, 125 Kan. 674, 266 P. 96, with the same consistent result. The language there used as to the power of cities is that: "They have only such power and authority as is specifically given them by the Legislature or those that are necessarily implied in the powers specifically given." 125 Kan. 674, at page 676, 266 P. 96.

The city in the case at bar frankly concedes that there is no specific legislation in this state authorizing municipalities to change the names of streets, but it insists that there is ample legislative authority specifically given to municipalities for the regulation and control of its streets, which necessarily implies not only the right to name and rename its streets, but infers a duty to do so in the interest of the general public good.

In the early case of Heller v. Atchison, T. & S. F. R. Co., 28 Kan. 625, it was held that: "The legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule, full discretion as to opening, improving and vacating the same." Syl. par. 1.

In Anderson v. City of Wellington, 40 Kan. 173, 176, 19 P. 719, 721, 2 L.R.A. 110, 10 Am.St.Rep. 175, it was said: "The power to pass a city ordinance must be vested in the governing body of the city by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation; not simply convenient, but indispensable."

In Gould v. City of Topeka, 32 Kan. 485, 4 P. 822, 49 Am.Rep. 496, it was held: "The control of the public streets of a city is vested in the city, and its exercise by the city is not wholly discretionary or judicial or quasi-judicial or legislative, and is not divided or shared with any other corporation or board or tribunal, but is absolute and exclusive in the city itself; and it is not conferred upon the city merely as a benefit which it may exercise or not, at its option or discretion, but it is imposed upon the city, also, as an absolute and mandatory duty, which it has no right to evade or avoid." Syl. par. 3.

The Legislature of Kansas has specifically authorized municipalities and conferred by law upon cities the right to care for streets in certain particulars. G.S.1935, 12-602, gives the right to grade, regrade, pave and repave, and otherwise improve any or all of its streets and levy assessments for the payment of the expense thereof; 12-603, the right to pave, grade, or repave intervening street connections and levy assessments therefor; 13-443, the right to vacate or close any street or portion thereof or to reopen the same. 26-201 gives authority for the opening or widening of the streets. Under 13-1023 a city may condemn private property for the improvement of streets and alleys. From these and other specific acts of the Legislature it is unquestionably not only the right of the city authorities to look after the laying out, paving, repaving of streets and the condemnation of land therefor, but it is the duty of such city to care for the same for the best interests of the public.

There are still other specific sections which more definitely impose such duty and responsibility upon the municipality. In 13-412 the city is authorized and required by the Legislature "To adopt all such measures as may be necessary for the protection of strangers and the traveling public in person and property."

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