McDonald v. Joint Rural High School Dist. No. 9

• Decision Date: 12 January 1957
• Docket Number: 40322,Nos. 40321,s. 40321
• Citation: 306 P.2d 175,180 Kan. 563
• Parties: T. W. McDONALD et al., Appellants, v. JOINT RURAL HIGH SCHOOL DISTRICT NO. 9 et al., Appellees. T. W. McDONALD et al., Appellants, v. JOINT COMMON SCHOOL DISTRICT NO. 30 et al., Appellees.
• Court: Kansas Supreme Court

Page 175

306 P.2d 175

180 Kan. 563

T. W. McDONALD et al., Appellants, v. JOINT RURAL HIGH SCHOOL DISTRICT NO. 9 et al., Appellees.

T. W. McDONALD et al., Appellants, v. JOINT COMMON SCHOOL DISTRICT NO. 30 et al., Appellees.

Nos. 40321, 40322.

Supreme Court of Kansas.

Jan. 12, 1957.

Syllabus by the Court.

In a consolidated action to enjoin the issuance and sale of school district bonds the record is examined, and it is held, the trial court did not err in sustaining a motion to strike portions of a petition as redundant and irrelevant and in holding that a second consolidated action was barred by a former consolidated action on the grounds of res judicata, following Kenoyer v. Board of Barber Examiners, 176 Kan. 424, 427, 271 P.2d 267.

Leonard W. McAnarney, Lyndon, Edward Sondker, Topeka, on the brief, for appellants.

Alex Hotchkiss, Lyndon, for appellees.

ROBB, Justice.

These two actions which were consolidated on appeal were commenced by taxpayers of two separate school districts seeking to enjoin the issuance and sale of school district bonds.

This is the second appearance of litigation involving Joint Rural High School District No. 9, hereinafter referred to as district No. 9, composed of territory in Osage and Franklin counties, and Joint Common School District No. 30, hereinafter referred to as district No. 30, also composed of territory in Osage and Franklin counties, portions of which overlap. The first appearance was in Gray v. Joint Rural High School District No. 9, 178 Kan. 387, 286 P.2d 147, which will be referred to herein as the Gray case. Reference will be made to appellants as plaintiffs.

The questions raised are common to both appeals. Only the petition in case No. 40,321 relating to district No. 9 has been abstracted and that is the one to which we will hereafter refer.

A careful comparison of the instant petition with the amended petition in the Gray case shows them to be identical up to and including paragraph 5. We will, therefore, adopt as though fully set out herein the summary of the allegations as they appeared in the Gray case. Beginning with paragraph 6 the present petition states that the school district is without authority to issue the bonds for the following reasons:

A. An election notice was published in a newspaper not of general circulation in contravention of G.S.1955 Supp. 72-2018.

B. District No. 9 board met with district No. 30 board and voted, jointly and simultaneously and without independent consideration, to proceed with the election, construction of a building, etc., which was contrary to law in that district No. 9 board should have met and conducted its independent consideration, and should have voted separately rather than in concert at the same meeting and same time as did the other school board.

C. The statute proceeded upon by district No. 9 is special legislation and contravenes and is repugnant to article 2, section 17, of the state constitution.

D. By depriving plaintiffs of their protection under the Fourteenth Amendment of the federal constitution the statute, G.S.1955 Supp. 72-2018, is unlawful.

E. District No. 9 published misleading and false statements as to the district's school building which induced a favorable vote for the bonds.

The prayer was identical to that set forth in the Gray case.

A motion by district No. 9 to strike subparagraphs B, C, D, and E of paragraph 6 for the reason that they are redundant and irrelevant was sustained by the trial court as to C, D, and E.

Plaintiffs contend that this motion to strike is a general demurrer and should have been overruled as such, citing Krey v. Schmidt, 170 Kan. 86, 223 P.2d 1015, but we are unable to agree that we have a general demurrer here. The Krey case, however, is authority for the procedural step taken by district No. 9 and failure to file a timely motion to strike would constitute a waiver. Sheldon v. Board of Education, 134 Kan. 135, 138, 4 P.2d 430. It is true that many times in the past there have been comparisons of motions to demurrers so as to make a ruling thereon appealable or not appealable. More often than not such a comparison was unnecessary and somewhat misleading for the reason that the substance of the motion irrespective of the form or title would have readily exhibited that a ruling on such a motion constituted a final order which disposed of part or all of a cause of action or a defense under our code. G.S.1949, 60-3302, 60-3303. Otherwise, of course, the ruling would not be a final order and no appeal would be proper therefrom. This was not a general demurrer so that at most it could be considered only as a motion to strike and if sustained, as it was here, it disposed of part of plaintiffs' cause of action.

We must therefore consider the next contention raised by the parties and that is whether the matters stricken by the trial court disposed of an integral part of plaintiffs' cause of action. Plaintiffs claim they did while district No. 9 by its motion claims that the matters were redundant and irrelevant. G.S.1949, 60-741. In Sheldon v. Board of Education, supra, it was held that immaterial and repetitious matters could be stricken under such a motion as we have here.

The first part of the petition stricken by the trial court was 6, C, which claimed the statute proceeded under was special legislation and was thus contrary to article 2, section 17, of the state constitution. Constitutionality of this statute has been previously raised but not determined because it was not properly raised. State ex rel. Osborn v. Richardson, 174 Kan. 382, 390, 256 P.2d 135; Missionary Baptist State Convention of Kansas v. Wimberly Chapel Baptist Church, 170 Kan. 684, 228 P.2d 540.

The pertinent portion of our state constitution reads:

'All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state. * * *' Art. 2, § 17.

The statute being considered is not like some that affect a class of citizens for the reason that when the statute was enacted there were numerous localities of the state in the position of district No. 9 and district No. 30. In some instances involving other statutes when at the time of enactment the application was to be to only one city, one county, or one school district, it has been held that such enactments did not constitute special legislation if it was reasonable that in the ordinary course of things other governmental units could come within the purview of such statutes. In our case it will be seen that not only were many localities involved but with changing conditions in the future, many others will become affected thereby. The law in its general form operates uniformly on all members of the class to which it has been applied, to which it now applies, and to which it will apply henceforth. Barker v. Kansas City, 149 Kan. 696, 88 P.2d 1071; Board of County Com'rs of Sedgwick County v. Robb, 166 Kan. 122, 199 P.2d 530; State ex rel. Shaw v. City of Topeka, 168 Kan. 663, 215 P.2d 644. The legislation need not affect every individual, class or community, but it is competent for the legislature to classify and adopt a law general in its nature to the class created. Redevelopment Authority of City of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P.2d 782. Our further examination of the statute fails to disclose that it is arbitrary or capricious as to those living in the overlapping territory when measured by the standards laid down in the last-cited cases.

The second part stricken was 6, D, wherein plaintiffs claim the statute deprives them of their protection under section 1 of the Fourteenth Amendment of the federal constitution, which provides:

'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

Plaintiffs rely on the proposition that those residents in the overlapping territories would be taxed 14% of the assessed valuation while those not in such overlapping territories would be taxed 7% of the assessed valuation. Such a situation is well treated in Board of County Com'rs of Sedgwick County v. Robb, supra, 166 Kan. at page 130, 199 P.2d at page 537, where it is said:

"It is no constitutional defense to a tax that the taxpayer is not directly benefited thereby, or is less benefited than others who pay the same or less tax' [from Morton Salt Co. v. City of South Hutchinson, 10 Cir., 159 F.2d 897, 900]; that absolute equality of taxation is unattainable, but a law, the manifest purpose of which is discrimination and inequality, cannot be sustained.'

Under the above texts we cannot see that the statute is contrary to the federal constitution or the state constitution so as to furnish plaintiffs with a cause of action.

The final portion stricken by the trial court was 6, E, which dealt with a misleading and false publication which induced a favorable vote for the bonds. Even if this were true, it is of no concern in an action such as this and we will not further labor the point. However, we do not wish to create the...