Lakeview Gardens, Inc., Application of

Decision Date19 January 1980
Docket NumberNo. 51228,51228
Citation227 Kan. 161,605 P.2d 576
CourtKansas Supreme Court
PartiesIn the Matter of the Application of LAKEVIEW GARDENS, INC., for Relief from a Tax Grievance in Sedgwick County, Kansas.

Syllabus by the Court

1. K.S.A. 79-1702, by its broad and general terms, grants the Board of Tax Appeals authority to declare property exempt and to cancel or abate taxes upon it.

2. The tax grievance statutes, article 17 of chapter 79 of the Kansas Statutes Annotated, contain no specific provision for appeal to the courts from orders of the Board of Tax Appeals correcting or refusing to correct irregularities.

3. K.S.A. 1979 Supp. 74-2426, governing appeals from orders of the Board of Tax Appeals, is inapplicable to original applications for relief from tax grievances before the Board of Tax Appeals under K.S.A. 79-1702.

4. If a right to appeal to the district court is conferred by statute, that right should not be defeated because of the designation of an improper district court by the appellant; if venue is nonexistent in the designated court, a transfer to the court of proper venue should be permitted if the ends of justice are served and no prejudice results.

5. Quasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.

6. The Board in determining whether property is exempt, performs a judicial or quasi-judicial function within the meaning of K.S.A. 1979 Supp. 60-2101(D ).

7. The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.

8. It is the duty of this court to raise the question of jurisdiction on its own motion; and where the district court had no jurisdiction, this court does not acquire jurisdiction over the subject matter upon appeal.

9. Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards except where the legislature has made some statutory provision for judicial review.

10. The legislature has provided an omnibus statute, K.S.A. 1979 Supp. 60-2101(D ), authorizing appeals to the district court from orders of any tribunal, board or officer exercising quasi-judicial functions.

11. K.S.A. 1979 Supp. 60-2101(D ) does not apply to appeals where a special statute has been provided by the legislature.

12. K.S.A. 1979 Supp. 60-2101(D ) does not apply to appeals from the Board of Tax Appeals and does not enlarge the limited right of appeal from that agency provided by the special statute, K.S.A. 1979 Supp. 74-2426.

R. K. Hollingsworth, Asst. County Counselor, Wichita, argued the cause, and Russell D. Canaday, Independence, was with him on the brief for appellants Sedgwick County Bd. of County Commissioners, Appraiser, Treasurer and Clerk.

Edwin P. Carpenter, of Hiatt, Crockett, Hiatt & Carpenter, Chartered, Topeka, argued the cause and was on the brief for appellee Lakeview Gardens, Inc.

MILLER, Justice:

This is an appeal by the Board of County Commissioners, the county appraiser, the county treasurer, and the county clerk of Sedgwick County, from judgment of the Shawnee District Court reversing a decision of the Board of Tax Appeals. The issues are whether the trial court had jurisdiction to entertain the appeal from the Board of Tax Appeals under present statutes, and whether K.S.A. 79-207 is constitutional.

Lakeview Gardens, Inc. is a Kansas cemetery corporation which operates a for-profit cemetery in Sedgwick County. Land adjacent to the cemetery is owned by Lakeview Mortuary, Inc., a separate Kansas for-profit corporation. The cemetery and mortuary corporations have common shareholders and directors.

Lakeview Gardens, Inc. acquired a sizeable tract of real estate in 1976, including what we will refer to as Tracts One, Two, and Three. Lakeview Gardens as grantor then transferred a five-acre portion of this land, Tract One, to itself, dedicating that five acres irrevocably to the burial and entombment of human remains. Lakeview Gardens applied to the Board of Tax Appeals for an exemption pursuant to K.S.A. 79-201c Third of that five-acre tract from taxation, and on November 9, 1977, the Board granted the application and exempted that tract from taxation so long as it is used exclusively for burial purposes.

Meanwhile, Lakeview Gardens conveyed a separate tract, Tract Two, to Lakeview Mortuary. The latter erected on Tracts Two and Three a commercial structure which is divided by a common wall placed exactly on the boundaries between these two tracts. On the Tract Three side of the wall is a mausoleum, which may be entered through its own exterior doors, or through doors opening through the common wall. On the Tract Two side of the wall is a chapel, office space for the two corporations, and a mortuary.

Tract Three, land lying between the common wall and Tract One, and including the mausoleum portion of the building, was dedicated irrevocably for burial purposes, and one or more persons were entombed therein. Lakeview Gardens then filed an original application with the Board of Tax Appeals, asking that Tract Three be exempted from taxation.

The Board heard the matter and on January 8, 1979, entered its order denying the application as to Tract Three and setting aside its order of November 9, 1977, granting exemption to Tract One. The Board's order reads in part as follows:

"18. That Lakeview Gardens, Inc., a corporation engaged in the ownership, operation and management of a cemetery indirectly owns, manages, conducts and operates a mortuary adjacent to and in connection with their cemetery as contemplated by K.S.A. 79-207.

"19. That an act of the legislature is presumed to be constitutional, and that K.S.A. 79-207 will be given full effect by this Board.

"IT IS, THEREFORE, BY THE STATE BOARD OF TAX APPEALS OF THE STATE OF KANSAS, CONSIDERED AND ORDERED:

"1. That order of November 9, 1977 by this Board which exempts the real estate in question from taxation is hereby set aside and revoked.

"2. The real estate of the applicant in question shall be subject to real estate taxes pursuant to K.S.A. 79-207. Such taxes shall be levied on such property in question for the period beginning January 13, 1977.

"3. That the application requesting relief from a tax grievance, be, and the same is hereby denied."

Lakeview Gardens, on January 26, 1979, filed a notice of appeal and a cash bond of $25 in the Sedgwick District Court "pursuant to K.S.A. 74-2426, as amended." Copies of the notice were mailed to the Secretary of the State Board of Tax Appeals and the Sedgwick County Attorney, and summons was served upon the Board of County Commissioners of Sedgwick County and on the Attorney General. The Board of County Commissioners, appearing by the county counselor, answered and moved to dismiss, contending that no right of appeal exists under K.S.A. 74-2426. Lakeview then sought to amend its notice of appeal by substituting "pursuant to K.S.A. 60-2101(d) as amended" for "pursuant to K.S.A. 74-2426, as amended." Leave to make that change was granted, and the case was transferred to the Shawnee District Court, where the appeal was briefed and argued. The trial judge adopted all of the findings of fact of the Board of Tax Appeals except No. 19; the judge then held that K.S.A. 79-207 is unconstitutional and void, set aside the Board's order, and ordered the property removed from the tax rolls.

The trial judge made no specific finding as to the basis for jurisdiction. The statute first designated by Lakeview Gardens as the basis for its appeal is K.S.A. 1979 Supp. 74-2426; it provides in part:

"Whenever the board of tax appeals shall enter its final order on any appeal, said board shall make written findings of fact forming the basis of such determination and final order and such findings shall be made a part of such final order. Within ten (10) days after its decision the board shall mail a copy of its order to all parties to such appeal. The appellant and the county appraiser shall be served by certified or registered mail. Within thirty (30) days after the mailing of the final order of the board, any party to such appeal may appeal to the district court of the proper county. Whenever the director of taxation or the director of property valuation shall have been a party to the appeal to the board, such director may appeal to the district court from an adverse ruling by such board.

"Appeals shall be taken by filing, with the clerk of the district court of the proper county, a written notice stating that the party appeals to the district court, and alleging the pertinent facts upon which such appeal is grounded. Upon filing of the notice of appeal, the clerk of the district court shall docket the cause as a civil action, and shall forthwith and without praecipe, issue summons and cause the same to be served upon all parties involved in the appeal to the board of tax appeals, in accordance with the manner now provided by law in civil cases. Jurisdiction to hear and to determine such appeals is hereby conferred upon the district courts of this state. Such an appeal shall not be heard as a trial De novo but shall be limited to the transcript of the board and any other public records of which the board can be held to have taken notice. Trial may be had or any order made in term or vacation. Appeals may be taken from the district court to the supreme court by any party to the appeal as in civil cases, except that neither the director of property valuation nor the director of taxation shall be required to give bond on appeal. The final decision made in such appeals may be entered as a judgment as in other civil cases for or against the party appealing."

This proceeding was commenced as an original...

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25 cases
  • J. Enterprises, Inc. v. Board of County Com'rs of Harvey County
    • United States
    • Kansas Supreme Court
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2 books & journal articles
  • Challenging and Defending Agency Actions in Kansas
    • United States
    • Kansas Bar Association KBA Bar Journal No. 64-06, June 1995
    • Invalid date
    ...60, K.S.A. 60-215 was cited to allow amendment of the jurisdictional statement of the notice of appeal. In re Lakeview Gardens, Inc., 227 Kan. 161, 167, 605 P.2d 576, 581 (1980). Further, when the Legislature has wanted to incorporate procedural provisions from Chapter 60 into other proceed......
  • Kansas Appellate Advocacy an Inside View of Common-sense Strategy
    • United States
    • Kansas Bar Association KBA Bar Journal No. 66-02, February 1997
    • Invalid date
    ...239 Kan. 183, 184, 718 P.2d 295 (1986) (time limit for serving and filing briefs not jurisdictional); In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980) (failure to timely pay docket fee and timely designate record not jurisdictional where no prejudice). [FN105]. This discussio......

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