Kansas City v. Robb

• Decision Date: 06 March 1948
• Docket Number: 37160.
• Citation: 164 Kan. 577,190 P.2d 398
• Parties: KANSAS CITY v. ROBB, State Auditor.
• Court: Kansas Supreme Court

190 P.2d 398

164 Kan. 577

KANSAS CITY v. ROBB, State Auditor.

No. 37160.

Supreme Court of Kansas

March 6, 1948

Syllabus by the Court.

1. By the terms of section 13-1018 l, G.S.1947 Supp. (being G.S.1939 Supp., sec. 13-1018 l, as amended by Laws of 1941 ch. 122, sec. 11), dealing with the issuance of general improvement bonds by municipalities for the construction of sewers to serve public property belonging to the city, the statute is made applicable only to cities having a population of more than 120,000 located within a county having an assessed tangible valuation in excess of $150,000,000. (Italics supplied.) Held, that such section 13-1018 l G.S.1947 Supp., is invalid, being in contravention of the provisions of sec. 17, art. 2, of the constitution of the state of Kansas.

2. Where a legislative act expressly repealing an existing statute, and providing a substitute therefor, is invalid, the repealing clause is also invalid unless it appears that the legislature would have passed the repealing clause even if it had not provided a substitute for the statute repealed.

3. The fact that the legislature, in amending a statute by addition of a proviso or other provision, reenacts the old statute verbatim is ordinarily and indiction that there was no legislative intent to repeal, in any event, the prior statute.

4. The attempted repeal of sec. 13-1018 l, 1939 Supp., by sec. 13 ch. 122, Laws of 1941, must fall along with the attempted amendment of said section by sec. 11 of said ch. 122.

5. Section 13-1018 l, G.S.1939 Supp., as it existed prior to the attempted amendment above referred to, is still in force and effect.

Alton H. Skinner, City Atty., and Joseph A. Lynch, Deputy City Atty., both of Kansas City, Kan. (Robert B. Fizzell, of Kansas City, Mo., on the brief), for plaintiff.

Edward F. Arn, Atty. Gen. (William Paul Timmerman, Asst. Atty. Gen., on the brief), for defendant.

HOCH Justice.

Heretofore, and on January 23, 1948, judgment for the plaintiff was announced in this case, with the statement that formal opinion would be handed down later.

In an original proceeding in mandamus, Kansas City, Kansas, seeks to compel the state auditor to register certain sewer bonds. The question presented is whether the statute under which the city issued the bonds has been repealed by a repealing clause contained in a subsequent act.

On November 28, 1947, the governing body of the city passed an ordinance authorizing issuance of general improvement bonds in the sum of $49,995 for the purpose of providing funds to pay for the construction of certain sewers and facilities for public property belonging to the city. No contention is made that the procedural steps required by the statutes were not complied with. The bonds recite as the authority for their issuance:

'By the authority of and in full compliance with the provisions, restrictions, and limitations of the constitution and statutes of the state of Kansas including Sections 10-101 to 10-115, inclusive, General Statutes of Kansas, 1935, and Chapter 149 of the Laws of Kansas, 1937, being Section 13-1018l, General Statutes of Kansas, 1939, Supplement; and any and all legal and valid amendments thereto.'

Section 13-1018l, G.S.1939 Supp., referred to in the bonds, provides in substance that cities having a population of more than 120,000 may issue general improvement bonds in an amount not in excess of $50,000 in any one year, for the construction of sewers to serve public property belonging to the city. The validity of such a classification of municipalities for such purposes was considered and upheld in State ex rel. v. Kansas City, 125 Kan. 88, 262 P. 1032. We now consider whether subsequent enactment has affected the validity of the statute.

The legislature of 1941 passed an act, Laws of 1941, ch. 122, relating to cities of the first class and amending twelve or more sections of the then existing statutes. One of such statutes was sec. 13-1018l, 1939 Supplement, which is the section here involved. The section was reenacted (sec. 11) verbatim with the following proviso added at the end: ' And provided further, That this section shall not apply to any city located within a county having an assessed tangible valuation in excess of $150,000,000.' Gen.St.Supp. 1947, 13-1018l. In section 13, the original sections thereinbefore amended, included 13-1018l, were 'repealed.'

Our first question is whether such added proviso renders unconstitutional the thus amended section 13-1018l.

In Carson v. Kansas City, Kan., 162 Kan. 455, 177 P.2d 212, an identical question was considered with reference to an attempted amendment of section 13-1078a by section 2 of said chapter 122. That section, which deals with paving or other improvements of streets and alleys in certain cities was reenacted verbatim, as in the instant case, with the addition of exactly the same proviso as is here involved, namely, that the section should not apply to any city located within a county having an assessed tangible valuation in excess of $150,000,000. We held that the section was in fact a special law enacted under the guise of a general law, and to meet the situation where a general law might be made applicable and was therefore in contravention of section 17, article 2, of the constitution...