Claflin v. Walsh

• Decision Date: 12 May 1973
• Docket Number: No. 46697,46697
• Parties: John M. CLAFLIN et al., Appellees, v. Richard F. WALSH et al., Appellants.
• Court: Kansas Supreme Court

Page 1130

509 P.2d 1130

212 Kan. 1

John M. CLAFLIN et al., Appellees, v. Richard F. WALSH et al., Appellants.

No. 46697.

Supreme Court of Kansas.

May 12, 1973.

Syllabus by the Court

1. By virtue of the home rule provision of the Kansas Constitution, Article 12, Section 5, cities are not dependent upon the state legislature for their authority to determine their local affairs and government. Cities have power granted directly from the people through the constitution without statutory authorization.

2. The home rule power of cities is subject to optional control by legislative action in four specific areas: (1) Enactments of statewide concern which are applicable uniformly to all cities; (2) other enactments of the legislature applicable uniformly to all cities; (3) enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction; and (4) enactments of the legislature prescribing limits of indebtedness.

3. Article 12, Section 5(d) requires a liberal construction of the powers and authority granted cities for the purpose of giving cities the largest measure of self-government.

4. Home rule power of cities is favored and should be upheld unless there is sound reason to deny it.

5. In determining whether a legislative enactment is applicable uniformly to all cities such a legislative intent should be clearly evident before the courts should deny a city the right to exercise home rule power in that area.

6. In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.

7. K.S.A.1970 Supp. 73-407, when considered along with various statutes pertaining to the subject of memorials, monuments and grave markers contained in K.S.A. Chapter 73, Article 4, is not applicable uniformly to all cities so as to preclude the city commissioners of Kansas City from transferring the management and control of that city's memorial building from a board of trustees to the city commissioners.

Matthew G. Podrebarac, Kansas City, argued the cause, and was on the brief for appellants.

Robert E. Jenkins, Kansas City, argued the cause, and Philip C. Lorton, Kansas City, was with him on the brief for appellees.

PRAGER, Justice:

This is an action challenging the validity of a charter ordinance passed by the Board of Commissioners of the City of Kansas City, Kansas, under the authority of the home rule amendment, Article 12, Section 5, of the Kansas Constitution. The plaintiffs-appellees are the Board of Trustees of the Soldiers' and Sailors' Memorial Building in Kansas City. The defendants-appellants are the City Commissioners of Kansas City. In this opinion we will refer to the plaintiffs as the trustees and to the defendants as the city commissioners.

Charter Ordinance No. 48, which became effective September 14, 1971, exempted the city of Kansas City, Kansas, from portions of K.S.A.1970 Supp. 73-407. In effect, Charter Ordinance No. 48 substitutes the board of commissioners of the city of Kansas City as manager and controller of the Soldiers' and Sailors' Memorial Building in place of the board of trustees who had been appointed by the mayor pursuant to 73-407. The trustees, obviously disturbed by the challenge to their authority, filed an action for injunctive relief challenging the validity of the charter ordinance and asking the court to declare it illegal and unconstitutional. The matter was set promptly for trial. The parties stipulated that procedurally the charter ordinance had met all the constitutional requirements, that the only questions before the court were pure questions of law and that the legality and constitutionality of Charter Ordinance No. 48 was the only issue to be determined by the court. The district court ruled that the ordinance was in violation of the Kansas Constitution for the reason that 73-407 was uniformly applicable to all cities in the state of Kansas and was not subject to charter ordinance under the home rule provision, Article 12, Section 5, of the Constitution of Kansas. From this adverse ruling the city commissioners have brought a timely appeal to this court.

The home rule amendment was adopted by the people in the general election of 1960, becoming effective July 1, 1961. In order to determine the issues of law presented on this appeal this court must, of necessity, construe certain provisions of the home rule amendment and apply that amendment to the peculiar facts of this case to determine the validity of the charter ordinance adopted by the city of Kansas City.

Article 12, Section 5, of the Kansas Constitution often referred to as the home rule provision provides in pertinent part as follows:

' § 5. Cities' powers of home rule. (a) The legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, That existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect until superseded by general law and such existing laws shall not be subject to charter ordinance.

'(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. All enactments relating to cities now in effect or hereafter enacted and as later amended and until repealed shall govern cities except as cities shall exempt themselves by charter ordinances as herein provided for in subsection (c).

'(c) (1) Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.

'(2) A charter ordinance is an ordinance which exempts a city from the whole or any part of any enactment of the legislature as referred to in this section and which may provide substitute and additional provisions on the same subject. Such charter ordinance shall be so titled, shall designate specifically the enactment of the legislature or part thereof made inapplicable to such city by the adoption of such ordinance and contain the substitute and additional provisions if any, and shall require a two-thirds vote of the members-elect of the governing body of such city.

'(d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.

'(e) This amendment shall be effective on and after July 1, 1961.'

Under the authority of the home rule provision the city commissioners enacted Charter Ordinance No. 48. It provided in part as follows:

'CHARTER ORDINANCE No. 48

'CHARTER ORDINANCE exempting the City of Kansas City, Kansas, from certain provisions of K.S.A.1970 Supp. 73-407, relating to the Soldiers and Sailors Memorial Building, and providing substitute and additional provisions on the same subject.

'BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF KANSAS CITY, KANSAS:

'Section 1. The City of Kansas City, Kansas, by the power invested in it by Article 12, Section 5, of the Constitution of the State of Kansas, hereby elects and exempts itself from and makes inapplicable to it, the provisions of K.S.A.1970 Supp. 73-407, relating to the Soldiers and Sailors Memorial Building, and to provide substitute and additional provisions as hereinafter provided.

'Section 2. That the management and control of the Soldiers and Sailors Memorial Building shall be vested in a board of city commissioners. The expense of maintenance of said memorial shall be paid out of the general government fund of the city, for which the city is authorized to make a levy upon all taxable tangible property in the city: Provided, That the board of city commissioners shall have full authority to lease all or any part of said building for hire to any person or persons desiring to lease the same for a term not to exceed one (1) year at a time and fix the rate and terms upon which the charge shall be made and collected therefor: Provided further, That the board of city commissioners shall have full authority to lease any suitable portion or portions of said building to any concessionaire desiring to lease the same, for a term of not to exceed ten (10) years, and to fix the rate and terms upon which the charge shall be made and collected therefor.'

The trustees attack the validity of Charter Ordinance No. 48 on the theory that K.S.A.1970 Supp. 73-407 providing for a board of trustees is uniformly...