In re V. The Board of County Commissioners of The County of Pottawatomie

• Decision Date: 12 May 1923
• Docket Number: 24,455
• Citation: 215 P. 451,113 Kan. 501
• Parties: In re, THE INCORPORATION OF THE TOWN OF OLSBURG, BLUE VALLEY TOWNSHIP, POTTAWATOMIE COUNTY et al., Appellants, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF POTTAWATOMIE et al., Appellees
• Court: Kansas Supreme Court

215 P. 451

113 Kan. 501

In re, THE INCORPORATION OF THE TOWN OF OLSBURG, BLUE VALLEY TOWNSHIP, POTTAWATOMIE COUNTY et al., Appellants, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF POTTAWATOMIE et al., Appellees

No. 24,455

Supreme Court of Kansas

May 12, 1923

Decided January, 1923.

Appeal from Pottawatomie district court; ROBERT C. HEIZER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

An appeal lies from the judicial questions involved in a proceeding before a board of county commissioners for the incorporation of a city of the third class.

Alvin R. Springer, and Walter Reed Gage, both of Manhattan, for the appellants.

C. B Griffith, attorney-general, E. S. Francis, county attorney, H. L. Hart, and E. C. Brookens, both of Westmoreland, for the appellees.

OPINION

HARVEY, J.:

This is an appeal from a judgment of the district court of Pottawatomie county dismissing an appeal by interested taxpayers from an order of the board of county commissioners incorporating the town of Olsburg in that county. The sole question in the case is whether or not an appeal lies from an order of the county commissioners incorporating a city of the third class. All other questions have been eliminated by agreement of the parties.

Primarily, the power to create municipal corporations is a legislative power, and its exercise a legislative function, which the legislature may accomplish by special act or by general law. In the absence of constitutional restrictions the legislative branch of the government may create municipal corporations by special act, as many cities in this state were organized by our territorial legislature. By our state constitution it is provided that the legislature shall pass no special act conferring corporate powers (Art. 12, § 1), and also, "provision shall be made by general law for the organization of cities, towns and villages." (Art. 12, § 5.) Following the adoption of our constitution the legislature did provide by general law for the organization of cities of the third class. In accordance with this constitutional provision the legislature provided by chapter 108, of the General Statutes of 1868 for the incorporation of towns and villages, and by chapter 26 of the Laws of 1869 provision was made for the organization and government of cities of the third class. It will be noted that these statutes provided that the hearing to determine whether or not the facts existed to justify the order incorporating the city or town was before the probate court. By chapter 60 of the Laws of 1871, and by chapter 102 of the Laws of 1872, these were so amended as to make the hearing before the judge of the district court. These were amended by chapter 66 of the Laws of 1886 making the hearing before the board of county commissioners, and that statute, as amended by chapter 123 of the Laws of 1905, is our present statute on the subject. (Gen. Stat. 1915, § 1874.) All of these statutes provide that before a city can be incorporated, the tribunal, or body conducting the hearing upon the matter, must determine, first, the number of inhabitants in the territory proposed to be incorporated; second, that the petition for incorporation has been signed by a majority of the electors; third, that a majority of the taxable inhabitants favor incorporation; fourth, that the prayer of the petitioners is reasonable.

Generally speaking, it may be said that it is the function of the legislative branch of the government to determine what is reasonable, desirable, or for the best interest, and to enact a rule or pass a law concerning those matters; and, generally speaking, it is a judicial function to determine whether or not certain facts establish a situation which brings the parties within the law, and to interpret the law, if need be. Applying these general principles it will be noted that, in the matters to be passed upon by the board of county commissioners for the incorporation of a city, the determination of whether the prayer of the petitioners is reasonable is a legislative function and is conferred absolutely upon the board of county commissioners. The other three questions above noted are essentially judicial in character. Section 1 of article 3 of the constitution provides that the judicial powers of the state shall be vested in a supreme court, district courts, probate courts, justices of the peace and such other courts inferior to the supreme court as may be provided by law. There is nothing inherently wrong in our legislature conferring upon the board of county commissioners, as a court provided by law inferior to the supreme court, the determination of judicial questions, hence our present statute for incorporating cities of the third class is not invalid for the reason that the county commissioners are required to pass upon some judicial questions. (Nash v. Glen Elder, 81 Kan. 446, 106 P. 292.)

In 28 Cyc. 137, it is said:

"A legislature cannot delegate the power of legislation to the judicial or executive departments, but it may delegate the power to determine some fact or state of things upon which it makes or intends to make its own action depend. It follows that the power to create municipal corporations cannot be delegated to the courts or other bodies, but the legislature may, and frequently does, confer upon the courts or upon some officer or board, the power and duty to perform judicial or ministerial acts in the formation of municipal corporations or to determine the existence of conditions prescribed by the statute as a prerequisite to the corporation."

To the same effect is 1 Dillon on Municipal Corporations, 5th ed., § 62.

The head note in Forsyth v. Hammond, 166 U.S. 506, 41 L.Ed. 1095, 17 S.Ct. 665, reads as follows:

"The validity of proceedings under a statute for the annexation of territory to a city is a question of a judicial nature, and not a matter solely of legislative cognizance."

It is well settled in this state that questions purely judicial in their nature arising under general laws, pertaining to the incorporation of cities, or to the increase or decrease of city boundaries, are...