Metropolitan Water Co. v. Kansas City

• Decision Date: 04 July 1908
• Docket Number: 8,720.
• Citation: 164 F. 738
• Parties: METROPOLITAN WATER CO. v. KANSAS CITY et al.
• Court: U.S. District Court — District of Kansas

164 F. 738

METROPOLITAN WATER CO. v. KANSAS CITY et al.

No. 8,720.

United States Circuit Court, D. Kansas, First Division.

July 4, 1908

Miller Buchan & Miller, Samuel Maher, and Willard P. Hall, for Metropolitan Water Company.

H. L Alden, City Counselor, for defendants.

POLLOCK District Judge.

The bill presented in this case by complainant seeks a decretal order against defendants, restraining and enjoining them from proceeding further in an attempt made to condemn and take over the waterworks plant of complainant located and operated by it in the defendant city. The endeavor of the city to possess itself of this water plant of complainant is made under the provisions of chapter 33, p. 30, Laws (Special Session) 1908, of the Legislature of this state, entitled 'An act relating to cities of the first class having a population of more than fifty thousand (inhabitants), and relating to the acquisition and maintenance of waterworks by and the supplying of such cities and their inhabitants with water.'

The facts in this matter necessary to a decision of the contentions made are as follows: For the past five years complainant has been operating its water plant in the defendant city without any franchise right from the city to so do, its franchise having expired by lapse of time, and the city having refused to grant such further extension of such franchise as was acceptable to complainant. In this condition of affairs complainant cannot extend its works commensurate with the growth and needs of the city and its inhabitants and will not improve its plant. Therefore the inhabitants are made to suffer for want of an adequate supply of potable water for domestic use, and for want of sufficient protection from the dangers by fire, hence the city has resolved to take over the plant under the power of eminent domain conferred upon it by the above-mentioned act. To this end, proceeding under the provisions of the legislative act cited, defendant city on the 28th day of April, 1908, passed a resolution of the common council of the city declaring its intention to avail itself of the provisions of the act in the condemnation of certain property therein described, the same being the property which comprises the water plant of complainant in defendant city, and praying in said resolution the appointment by the honorable judge of the district court of the county of three commissioners, as provided in the act, to estimate and appraise the value of said property, and make and file an award of damages accruing to complainant from the taking by the city of said waterworks plant. Thereafter, and on the 6th day of May, 1908, upon presentation of said resolution to the judge of the district court of the state, there was appointed, as commissioners under the provisions of the act, defendants herein, Harry Darby, P. W. Goebel, and O. W. Sheperd, each and all citizens and taxpayers in defendant city and the county of Wyandotte, this state, in which said city is located. However, theretofore, and on the 4th day of May, complainant herein presented its petition and bond in due form to the honorable judge of the state court for removal of said controversy into this court. An order of removal by that court was refused complainant solely on the ground that the controversy presented was not such as is removable under the provisions of the federal judiciary act. Thereafter, complainant caused a transcript of the record to be lodged in this court and on June 24, 1908, the commissioners appointed by the state court being, as averred in the bill of complaint filed herein, about to make and file their award of damages, presented and filed its bill praying an order of this court restraining and enjoining the defendant city, and the commissioners therein named, from further proceeding in the matter. The grounds upon which this injunctive relief is demanded are these: (1) That the act under which defendants are proceeding is unconstitutional and void for two reasons: (a) Because it is special legislation; (b) because no provision is made in the act for making just compensation to complainant for its property. (2) It is also contended by complainant the present proceeding should be enjoined because the commissioners appointed are disqualified to act on account of interest in the controversy. (3) It is further contended the controversy was properly removed into this court before the present commissioners were appointed, therefore the judge of the state court was without jurisdiction or power to make such appointment, and the commissioners are in consequence without authority to act in the premises and should be enjoined, although the act should be held valid legislation.

And, further, that this court should grant the order here demanded in protection of its jurisdiction over the controversy acquired by such removal to this court. Of these contentions in their order.

As to the claimed unconstitutionality of the act, section 1 of article 12 of the Constitution provides as follows:

'The Legislature shall pass no special act conferring corporate powers.'

Section 17 of article 2 provides:

'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.'

Section 5 of article 12 provides:

'Provision shall be made by general law for the organization of cities, towns and villages.'

It must be conceded, I think, that the act in question confers corporate powers upon the defendant city. As said in Gilmore v. Norton, 10 Kan. 504:

'Any power conferred upon a corporation, and to be exercised by the corporation, is a corporate power.'

Therefore, if the act in question be special legislation, its claimed invalidity must follow. Is it special legislation? The title of the act reads as follows:

'An act relating to cities of the first class having a population of more than fifty thousand (inhabitants), and relating to the acquisition and maintenance of waterworks and the supplying of such cities and their inhabitants with water.'

The purpose expressed by the title is fully carried out in the body of the act. The contention made by complainant is, as the cities of the state are created and classified by general laws, the act in question in limiting its operation to one of a class-- that is, to a city of the first class having a population of over 50,000-- without any reason for such limitation, and as the defendant city is the only city of the first class in the state having a population of more than 50,000 souls, and as the classification made is wholly arbitrary and without reason, therefore the act of necessity is special.

On the other hand, it is contended by defendants that the act is general in terms, and as it may relate to any city of the first class in the state when it shall attain a population of more than 50,000 souls, although there is no other city in the state having the requisite amount of population at this time, yet as it may operate upon any other city of the first class when such population is attained, the act is general and not special. While I am free to confess very cogent and powerful arguments may be adduced in support of the contention made by complainant that this act is special legislation and therefore void, yet the construction placed upon the provisions of the Constitution of the state by its highest judicial tribunal must control here.

From a careful consideration of some of the many cases emanating from that tribunal touching the question here presented, I am inclined to the opinion the claimed invalidity of the act is left in such doubt that I deem it my duty as a trial judge to uphold the act and allow it to be stricken down only by some appropriate reviewing tribunal after a more thorough and exhaustive research and consideration of the question presented than time will permit me to now give. A few of the cases from that court supporting or tending to support the validity of the classification made in the act are: State v. Downs, 60 Kan. 788, 57 P. 962; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 P. 781; Wulf v. Kansas City (Kan.) 94 P. 207; Com'rs Wyandotte Co. v. Abbott, 52 Kan. 148, 34 P. 416; Riley v. Garfield Township, 58 Kan. 299, 49 P. 85.

Nor, in my judgment, is the act void because it does not provide the means to be employed in making payment or enforcing collection of any increase in the amount of the award made by the commissioners on appeal and trial before a jury, for the act in express terms creates a liability on the part of the city for such increased amount and costs of appeal in case the trial jury are of the opinion the award of the commissioners is not sufficient in amount to make just compensation to complainant. The act provides for an appeal, and employs the following language:

'Said city shall, in addition to the amount awarded by the commissioners, be liable for such sums in excess thereof as may be recovered on any appeal, and for the costs of said appeal, but if judgment for a less sum than awarded by the commissioners is recovered, the city shall not be liable for a sum in excess of such judgment nor for the costs of said appeal.'

Hence as the award of the jury on appeal fixing the just compensation to be made for the taking of the property as provided by the Constitution in the exercise of the power exerted is in form a judgment based on a liability created by statute, it is manifest the city could not retain the property and refuse payment of the judgment awarded. Or, if such attempt should be made on the part of the city, ample means are at hand to enforce the liability of the city as created in the act. Therefore I am constrained to hold the act in...