Callen v. Junction City

• Decision Date: 04 April 1890
• Parties: JIM S. CALLEN v. THE CITY OF JUNCTION CITY et al
• Court: Kansas Supreme Court

23 P. 652

43 Kan. 627

JIM S. CALLEN v. THE CITY OF JUNCTION CITY et al

Supreme Court of Kansas

April 4, 1890

Error from Geary District Court.

INJUNCTION denied, on August 29, 1889; and order brought here for review. The facts are set forth in the opinion.

Judgment affirmed.

Jim S Callen, plaintiff in error, for himself.

Thomas Dever, for defendants in error.

SIMPSON C. All the Justices concurring.$115.SIMPSON

OPINION

SIMPSON, C.:

This case was commenced in the district court of Geary county, to restrain the city of Junction City, a city of the second class, and the other defendants in error, who were appointed appraisers to assess damages occasioned by laying out and opening streets through the land of the plaintiff in error, from further proceedings. An application was made to the district judge to grant a temporary restraining order--all parties being represented by counsel--and the writ was denied. The case is here to review the order denying the temporary writ. The case was heard below on the petition, answer, and reply; and the facts admitted by the pleadings are as follows: The land of the plaintiff in error is a three-cornered tract containing about twenty-eight acres. This tract of land was embraced within the corporate limits of the city by an ordinance approved July 9, 1889, that reads as follows:

"AN ORDINANCE relating to and extending the corporate limits of the city of Junction City.

"Whereas, A petition in due form has, in manner provided by law, been presented to the Hon. M. B. Nicholson, judge of the district court of Geary, formerly Davis county, Kansas, asking said M. B. Nicholson, as judge of said district court, to make findings as to the advisability of extending the corporate limits of the city of Junction City so as to include therein the body of land adjacent to said city, and commonly known as 'Callen's Field,' the particular description thereof being as follows, to wit: Lot 2, section 1, town 12 south, range 5, east of the sixth principal meridian in Kansas; and,

"Whereas, Said M. B. Nicholson, as judge of the district court of Geary, formerly Davis county, Kansas, on the 18th day of May, 1887, at the city of Council Grove, in Morris county, Kansas, upon the hearing of the matter contained in said petition, did find as follows, to wit:

"'1. That it will be to the interest of the city of Junction City to extend the corporate limits thereof, so as to include therein the body of land adjoining said city, more particularly described as follows, to wit: Lot 2, section 1, town 12 south, range 5, east of the sixth principal meridian in Kansas, and generally known as 'Callen's Field.'

"'2. That it will be no manifest injury to the owners of the aforedescribed land, to have the same included within the corporate limits of said city of Junction City.'

"And whereas, Upon appeal taken from said findings to the supreme court of the state of Kansas, by the owners of said described land, the said supreme court duly found and ordered and adjudged that it had no power to reverse, vacate, set aside or modify said findings: therefore,

"Be it ordained by the Mayor and Councilmen of the city of Junction City:

"SECTION 1. The corporate limits of the city of Junction City are hereby extended so as to include therein the body of land adjacent to said city, more particularly described as follows, to wit: Lot 2, section 1, town 12 south, range 5, east of the sixth principal meridian in Kansas, and generally known as 'Callen's Field.'

"SEC. 2. This ordinance shall take effect and be in force from and after its publication once in the Junction City papers.

"CHAS. P. FOGELSTROM, Mayor.

"Approved July 9, 1889.

[L. S.]

Attest: J. B. CALLEN, City Clerk."

This ordinance is pleaded by the defendants in error as justification for their acts. The reply of the plaintiff in error to this answer alleges that the statutes and ordinances under and by virtue of which all proceedings were had and acts done, are and were at the time unconstitutional and void, and all of said proceedings were had without authority of law, and are null and void. The contention of the plaintiff in error is this: That § 1 of chapter 69 of the Laws of 1886 is unconstitutional, for the following reasons:

"1. That as no remedy is provided for the aggrieved party by appeal to any court or tribunal whatever, it is in conflict with § 1, article 14 of the constitution of the United States, and thus deprives a person of property without the due process of law.

"2. It is in conflict with article 7 of the constitution of the United States in this, that there is no provision made, nor an opportunity given, whereby a party in interest may obtain a trial by jury.

"3. For the reason given it is unconstitutional, being in violation of § 5 of the bill of rights of the constitution of the state of Kansas, by violating the right of trial by jury.

"4. That the compensation provided for by law for property taken for public use, as followed in this case, is inadequate, unjust, and an unconstitutional method, inasmuch as the appraisers provided for by law are authorized to take into consideration the benefits to be derived by, as well as the damages incurred to the owner.

"5. Said law of 1886 is unconstitutional and in violation of § 18 of the bill of rights of the constitution of the state of Kansas, which provides that 'All persons, for injuries suffered in person, reputation, or property, shall have remedy by due course of law, and justice administered without delay. This proceeding takes private property for public use without just compensation.

"6. It is in conflict with § 4 of article 12 of the constitution of the state of Kansas, which provides that 'No right-of-way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation.'

"7. Said law of 1886 is unconstitutional and in violation of § 1, article 2 of the constitution of' the state of Kansas, in attempting to delegate a legislative power to the judiciary.

"8. The law is a special one, conferring corporative power."

As to the first objection assigned, it is only necessary to say that the change of the status of a tract of land from a farm to city lots, by the exercise of a power granted cities to extend their limits, is not a deprivation of property without due process of law. As to the second and third objections, it may be remarked that if the extension of the limits of a city is a purely legislative power, as the plaintiff in error claims, such a power is not exercised by means of a jury trial. To the fourth objection, a sufficient answer is found in the statement that neither the statute we are considering, nor the ordinance passed in pursuance of it, has anything to do with the question of' compensation. He might raise the question embraced in the objection on an appeal from the award of the commissioners. The fifth objection mingles legislative and judicial considerations, but the pith of it is contained in the last sentence; but it must be obvious to all, that a mere change in the use of land from agricultural to city purposes, is not taking private property for public use. The case of Comm'rs of Pottawatomie Co. v. O'Sullivan, 17 Kan. 58, holds that § 4, article 12 of the constitution of this state, has application only to canals, railroads, and other similar cases in which some corporation takes a use or benefit in the land other than that enjoyed by the public. It is claimed in the eighth objection that the law is a special one, but this is entirely unsupported; by the express terms of the act it applies to all cities of the second class.

This leaves the seventh objection to contain the spinal marrow row of the contention of the attorneys of the plaintiff in error, that by this statute the legislature attempted to delegate a legislative power to a judicial officer. The legislature of this state has in express terms conferred upon the judges of the district courts the power to hear and determine whether a proposed ordinance of a city of the second class extending its limits, so as to embrace certain described tracts of land, will be to the interest of the city, and will cause no manifest injury to the persons owning the land. If the findings of the district judge are in favor of the extension, the...