Lampe v. City of Leawood

• Decision Date: 09 December 1950
• Docket Number: No. 38035,38035
• Citation: Lampe v. City of Leawood, 225 P.2d 73, 170 Kan. 251 (Kan. 1950)
• Parties: LAMPE v. CITY OF LEAWOOD et al.
• Court: Kansas Supreme Court

Page 73

225 P.2d 73

170 Kan. 251

LAMPE v.CITY OF LEAWOOD et al.

No. 38035.

Supreme Court of Kansas.

Dec. 9, 1950.

Syllabus by the Court.

1.The legislative functions of the Board of County Commissioners in incorporating a city of the third class are not subject to appeal to the district court.

2.Actions questioning the validity of the proceedings of a Board of County Commissioners in incorporating a city of the third class cannot be maintained by a private individual.They can only be prosecuted at the instance of the State by its proper officers.

Raymond H. Carr, of Mission, argued the cause, and Rolla W. Coleman, of Mission, was with him on the brief, for the appellant.

John W. Breyfogle, Jr., of Olathe, argued the cause, and W. B. Gozad, Clark Kuppinger, and the firm of Morrison, Nugent, Berger, Hecker & Buck, all of Kansas City, Mo., were with him on the brief, for the appelleeCity of Leawood.

John Anderson, Jr., County Atty., and John W. Breyfogle, Jr., Special Counsel, both of Olathe, argued the cause and were on the brief, for the appelleeBoard of County Com'rs of Johnson County.

HARVEY, Chief Justice.

The appeal here is from an order of the district court dismissing the appeal of the present appellant from an order of the Board of County Commissioners incorporating the City of Leawood, in Johnson county.

The record discloses that on September 22, 1948, a petition to incorporate the City of Leawood as a city of the third class was filed with the Board of County Commissioners of Johnson county.The proposed corporate limits were described by metes and bounds in the petition and included a total area of 1013.13 acres.Within this area is a nineteen acre tract owned by appellant, a part of which had been used as a stone quarry and is now suitable to be made into a lake.The remainder of it is suitable for residence purposes.None of it is farm land.The proposed city contained a population of something over 800 people.The petition was signed by a majority of the qualified electors.Due notice was given, as required by statute, and a hearing was had before the Board of County Commissioners on October 19, 1948.The appellant appeared at that meeting with his attorney and made a request in writing that his land be withdrawn from the corporate limits of the City of Leawood if and when the board should determine that the territory shown by the plat attached to the petition would be incorporated into a city of the third class.On November 30, 1948, the Board of County Commissioners made an order incorporating the City of Leawood as a city of the third class, with boundaries as described in the petition and the plat which accompanied it.From this order the appellant appealed to the district court.The Board of County Commissioners and the City of Leawood separately moved the district court to dismiss the appeal.The motions were overruled and the appeal was heard by the court.After a full hearing the court found 'That the proceedings had before the Board of County Commissioners of Johnson County, Kansas, with respect to the incorporation of The City of Leawood were and are regular and valid in all respects and comply with the laws of this state made and provided for the incorporation of a city of the third class as a body politic and corporate', and made an order dismissing the appeal at appellant's cost.Appellant filed a motion for a new trial, which was overruled, and this appeal followed.

The principal legal contention made by appellant is that the petition presented to the Board of County Commissioners did not correctly and within the meaning of the statute, G.S.1935, 15-102, set forth the metes and bounds of the 'village and commons,' but included large tracts of ground, including the appellant's, lying outside the statutory territory...