In re Appeal of Fannie Ruland v. The City of Augusta

• Decision Date: 09 January 1926
• Docket Number: 26,305
• Citation: 120 Kan. 42,242 P. 456
• Parties: In re Appeal of FANNIE RULAND, JOSEPH TAYLOR et al., Appellants, v. THE CITY OF AUGUSTA, Appellee
• Court: Kansas Supreme Court

242 P. 456

120 Kan. 42

In re Appeal of FANNIE RULAND, JOSEPH TAYLOR et al., Appellants, v. THE CITY OF AUGUSTA, Appellee

No. 26,305

Supreme Court of Kansas

January 9, 1926

Decided January, 1926.

Appeal from Butler district court; GEORGE J. BENSON, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Delegation of Legislative Authority -- Municipal Limits. The general question of the advisability of enlarging the territorial limits of a municipal corporation is a legislative question which, under our constitution cannot be delegated to the courts.

2. SAME--Delegation of Legislative Authority to Judiciary. R. S. 12-501, 12-502, in so far as they attempt to confer upon the district court, or judge thereof, authority to entertain a petition to increase the corporate limits of a city by adding unplatted territory thereto, to determine the advisability of the proposed territorial increase, and to make orders in relation thereto, are void, as an attempt to confer legislative functions upon the judiciary.

Earl Blake, W. A. Blake, H. L. Blake, all of Wichita, and M. A. Merten, of Augusta, for the appellants.

Stanley Taylor, of El Dorado, N. A. Yeager and R. A. Cox, both of Augusta, for the appellee.

OPINION

HARVEY, J.:

This case involves the validity of R. S. 12-501, 12-502, in so far as they attempt to confer upon the district court, or judge thereof, the power to hear and pass upon a petition to enlarge the corporate limits of a city by adding unplatted territory thereto. The statutes in question read as follows:

"Whenever any city desires to enlarge the limits thereof from territory adjacent thereto, the governing body of such city shall in the name of the city present a petition to the district court of the county in which said city is situated, or the judge thereof, setting forth by metes and bounds the territory sought to be so added and praying that such territory may be added thereto. (R. S. 12-501.)

"Notice of the time and place of said hearing, together with a description of the property sought to be added to said city, and the names of the owners thereof so far as the same can be ascertained from the records of said county shall be published for three consecutive weeks in some newspaper of general circulation in said city. On the day set the said court or judge shall proceed to hear testimony as to the advisability of making such addition, and upon such hearing if it or he shall be satisfied that the adding of such territory to the city will be to its interest and will cause no manifest injury to the persons owning real estate in the territory sought to be added, it or he shall make an order declaring said territory a part of the corporate limits thereof and subject to the laws and ordinances pertaining thereto, and such city may thereupon by ordinance enlarge the limits thereof to include the territory so added: Provided, That no such proceeding shall be necessary when the territory sought to be added is subdivided into lots and blocks, but in such cases the city shall have power to add such territory to the city by ordinance. The court or judge may for good cause shown continue such hearing beyond the time specified in the notice without further publication. Application for adding separate parcels of territory to said city may be made in the same petition, and upon such application the court or judge may order any or all of such parcels added thereto. The decision of such court or judge shall be spread at length upon the journal of the district court of said county, and a certified copy thereof recorded in the office of the register of deeds of such county." (R. S. 12-502.)

The question arises in this way: On November 14, 1924, the city of Augusta, a city of the second class, filed in the district court a petition in which it alleged "that by resolution, duly adopted, passed and approved by the mayor and councilmen of the said city, that the said city was directed to file its petition in said court to make a finding as to the advisability of enlarging the limits of said city from territory thereto, and for an order and decree that the following-described territory be added to the said city." (Here followed a description of the property by separate tracts.)

"Wherefore, the city of Augusta, Butler county, Kansas, prays the court that on the hearing of this petition that the said court shall find it advisable to make such addition; and that the tracts of land hereinbefore described by metes and bounds be added to the said city; and that an order be made declaring that such territory is a part of the corporate limits thereof, subject to the laws and ordinances pertaining to the city of Augusta; and authorizing and directing such city, by its mayor and councilmen, to pass an ordinance to enlarge the limits of said city to include the parcels and tracts of land above described."

Notice as provided by the statute was given. The owners of the respective tracts of land sought thus to be added to the city filed answers in which they attacked the validity of the statute above quoted, for the reason that it attempts to confer legislative power upon the district court, or the judge thereof; also for other reasons not necessary here to be considered. At the hearing the question was further raised by objections to the jurisdiction of the court and the introduction of evidence. The court overruled the objections, denied the property owners' contention as to the invalidity of the statute, found that the application of the petitioner should be allowed in part and denied in part, and further found "that the adding of such territory, hereinafter described, will be to the interests of the petitioner herein and will cause no manifest injury to the persons owning real estate in the territory so to be added," and adjudged and decreed "that the real estate hereinafter described, being a portion of the property described in petitioner's petition filed herein, be, and the same is hereby added to and declared to be a part of the corporate limits of the city of Augusta, Kan., and subject to the laws and ordinances pertaining thereto, and that said city may by ordinance enlarge the limits thereof to include the territory so added, being the following-described real estate," giving the descriptions.

The answering property owners affected by the judgment have appealed, contending that the statutes above quoted are invalid. It may help us better to understand and determine the question before us to go back as far as 1872 in the history of the law of this state pertaining to the extension of corporate limits of cities of the second class, and to trace its development since that time. The statute then enacted reads:

"The city council, in their discretion, may add from the territory adjacent to the city limits, as defined and existing at the date of the approval of this act, such additional territory as they may deem proper, and shall in every case have power to increase or diminish the city limits in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, That in no case shall any adjacent territory, except when subdivided into town lots, be added to the limits of a city without the consent, in writing, of the owners of a majority of the whole number of acres owned by residents of Kansas of the territory proposed to be added." (Laws of 1872, ch. 100, § 133.)

This was modified (Laws of 1875, ch. 73) as to cities of more than 6,000 inhabitants by requiring notice to be given that the city was about to pass an ordinance increasing its boundaries and giving an opportunity for property owners interested to be heard before the ordinance was passed.

Evidently deeming it to be unfair to property owners in some instances to have the entire matter determined by the mayor and city council, the legislature, in 1885, attempted to give some of the power pertaining to such matter to the judge of the district court, and enacted the following statute:

"That whenever the city council of any city of the second class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of said city, present a petition to the judge of the district court of the county in which said city is situated, setting forth by metes and bounds the territory sought to be so added, and praying that such territory may be added thereto. Upon such petition being presented to said judge, with proof that notice as to the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, he shall proceed to hear testimony as to the advisability of making such addition, and upon such hearing, if he shall be satisfied that the adding of such territory to the city will be to its interests, and will cause no manifest injury to the persons owning real estate in the territory sought to be added, he shall make an order declaring said territory a part of the corporate limits thereof, and subject to the laws and ordinances pertaining thereto: Provided, That no such proceedings shall be necessary when the territory sought to be added is subdivided into lots and blocks, but in such cases the city council of said city shall have power to add such territory to said city by ordinance." (Laws of 1885, ch. 97, § 1.)

A separate section of the statute provided that an aggrieved party might appeal from the order of such judge to the district court. Almost immediately the validity of this statute was seriously questioned because of its attempt to confer legislative power upon the district judge, and by appeal to the district court, and in the special session of the legislature of the next year...