Carson v. McDowell

• Decision Date: 12 April 1969
• Docket Number: 45292,Nos. 45210,s. 45210
• Parties: David W. CARSON, Appellant, v. Joseph H. McDOWELL, Mayor; Earl B. Swarner, Commissioner of Finance and Public Property; Joseph Regan, Commissioner of Boulevards and Parks; Kansas City, Kansas, and Meadow Oaks Country Club, Inc., Intervenor, Appellees.
• Court: Kansas Supreme Court

Page 828

452 P.2d 828

203 Kan. 40

David W. CARSON, Appellant, v. Joseph H. McDOWELL, Mayor; Earl B. Swarner, Commissioner of

Finance and Public Property; Joseph Regan, Commissioner of

Boulevards and Parks; Kansas City, Kansas, and Meadow Oaks

Country Club, Inc., Intervenor, Appellees.

Nos. 45210, 45292.

Supreme Court of Kansas.

April 12, 1969.

Syllabus by the Court

1. The rule, where a statute requires that a thing be done 'at least' or 'not less than' so many given days before a fixed time it is meant that the given number of clear days must elapse between the two terminal days, is applied to notice of change in zoning under the provisions of K.S.A.1965 Supp. 12-708.

2. The provision of K.S.A. 60-206(a), which provides that in computing time, the day of the act or event from which the period of time begins to run shall not be included but the last day of the period is to be included, does not apply where the phrases 'at least' or 'not less than' are used in the statute designating the number of days to elapse between the two terminal days.

3. The provision (K.S.A.1965 Supp. 12-708) for publication notice of a proposed change in zoning is mandatory and must be complied with in order to give the planning commission authority to recommend and the city commission jurisdiction to enact the ordinance.

4. In an action challenging the validity of an ordinance changing zoning, the proceedings are examined and it is held, the number of days elapsing between the first published notice and the day of hearing did not meet the requirements of the statute and the ordinance was void.

John H. Fields, Kansas City, for appellant.

Robert H. Bingham, Kansas City, for appellees, Lee E. Weeks, Leonard O. Thomas, J. D. Lysaught and Ervin G. Johnston, Kansas City, on the briefs.

C. W. Brenneisen, Jr., Kansas City, for City and Commissioners of Kansas City, Kansas.

Richard L. Reid, Kansas City, for Meadow Oaks Country Club, Inc., intervenor and appellee.

HATCHER, Commissioner.

This is an appeal from the judgments in two consolidated cases (Nos. 45,210 and 45,292) in which the district court approved two ordinances changing zoning in the city of Kansas City, Kansas.

As the cases are to be decided on the procedural sufficiency to vest the city with jurisdiction to make the zoning change in each case the general facts may be abbreviated.

On December 14, 1965, the city annexed most of the territory east of the eastern boundary of the Canterbury additions. The annexed territory automatically assumed a single family zoning. The territory included the two tracts in controversy.

Following the filing of two separate petitions for a change of zoning the City Planning Commission first published on December 21, 1965, notices separately covering the two tracts in controversy. The notices, which were the same, except for the descriptions, read:

'Notice is hereby given that the Planning Commission of Kansas City, Kansas will hold a public hearing on the 10th day of January, 1966 at 7:30 p. m., in the City Hall Auditorium of Kansas City, Kansas, upon the petitioned change of zone from 'C' single family District to 'E-1' office & professional District on the following described property: (tract described)

'Tentative recommendation of the City Planning Commission-Approve. All persons interested in said premises and all persons owning property in said neighborhood who desire to be heard, either for or against such rezoning, are invited to appear at the time and place above mentioned.'

It will be noted that the first publication was on December 21, 1965, and the hearing was held on January 10, 1966. There were but nineteen 'clear days' between the first publication and the day of hearing. The case before us involves a proposed change in zone. K.S.A.1965 Supp. 12-708 provided for zoning and change of zoning. It also provides for publication notice in the following language:

'* * * The secretary of the planning commission shall cause a notice of such public hearing (on original zoning recommendations) to be published once in the official city newspaper and at least twenty (20) days shall elapse between the date of such publication and the date set for hearing. * * * The governing body may from time to time amend, supplement or change the boundaries or regulations contained in such zoning ordinance. * * * All such proposed changes shall first be submitted to the city planning commission for recommendation and report. Upon the development of tentative recommendations, the planning commission shall hold a public hearing thereon and shall cause an accurate written summary to be made of the proceedings, and shall give notice in like manner as that required for the original zoning recommendations. Such notice shall fix the time and place for such hearing * * *.' (Emphasis supplied.)

The appellant contends that the provision 'at least twenty (20) days shall elapse between the date of such publication and the date set for hearing' means twenty clear days, and since the notices provided for only nineteen clear days the appellees were without jurisdiction rendering the zoning ordinances null and void.

We are forced to agree with appellant's contention.

Where a statute requires that a thing be done 'at least' or 'not less than' so many given days before a fixed time, it means that the given number of 'clear days' must elapse between the two terminal days.

Here we have even more than 'at least'; we have the additional provision that the twenty days 'shall elapse' between the date of publication and the date set for hearing. However, we do not consider the use of the phrase 'shall elapse' as necessarily controlling our decision in this case.

Our decisions at one time may have left some confusion as to the computation of time where the words 'at least' or 'not less than' were used. (City of Wichita v. Robb, 163 Kan. 121, 179 P.2d 937; State ex rel. McQueary v. Miami County Comm'rs, 168 Kan. 723, 215 P.2d 631; State ex rel. Johnson v. Schmidt, 182 Kan. 593, 322 P.2d 772.) However, any confusion which arose from the conflicting opinions was completely dispelled by Baugh v. Rural High School District, 185 Kan. 123, 340 P.2d 891, dealing with statutory notice of school bond elections and it was held:

'The provisions of the foregoing statute requiring the first publication to be not less than twenty-one days prior to such election are construed and held to mean that twenty-one clear days must intervene between the date of first publication in the newspaper and the date of the bond election. In computing the time both the first day of publication and the day of the election are...