Petition of City of Salina

• Decision Date: 08 July 1950
• Docket Number: No. 37919,37919
• Citation: 169 Kan. 579,220 P.2d 147
• Parties: Petition of CITY OF SALINA. CITY OF SALINA v. THOMPSON.
• Court: Kansas Supreme Court

Page 147

220 P.2d 147

169 Kan. 579

Petition of CITY OF SALINA CITY OF SALINA v. THOMPSON.

No. 37919.

Supreme Court of Kansas.

July 8, 1950.

Syllabus by the Court.

1. The statute (G.S.1935, 12-502a) which grants an appeal from the board of county commissioners' order enlarging corporate boundaries, made under the provisions of sections 12-501 and 12-502, is to be construed as authorizing a review only of the action of the board which is judicial in nature. It is effective at least to the extent of enabling persons aggrieved to carry to the district court the question whether manifest injury would be done to their property by the proposed change, and if an affirmative answer is given to have the order set aside as having been made without authority.

2. G.S.1935, 12-502a is not unconstitutional in that it grants an appeal from the board of county commissioners to the district court for determination of all matters of a judicial nature.

Ralph M. Hope, of Wichita, Ralph Knittle, of Salina, and W. F. Lilleston, of Wichita, on the briefs, for appellant.

James P. Mize, of Salina, C. L. Clark and Jason K. Yordy, also of Salina, on the briefs, for appellee.

WERTZ, Justice.

This was an appeal by an interested landowner to the district court of Saline County from findings of the board of county commissioners allowing addition of described territory to the City of Salina upon petition of the city to that board under G.S.1935, 12-501 and 12-502. Provision for such appeal is made in section 12-502a. The appeal was resisted by the city on the ground that said section 12-502a is an unconstitutional delegation of legislative functions to the district court, and its contention was sustained by the district court. The landowner appeals to this court from the above decision.

The city's petition, filed with the board of county commissioners on March 15, 1949, asked the board to find that it was advisable to add certain territory (describing it) to the city, that it would be to the interest of the city that it be added, and that the addition would not result in manifest injury to those owning the tracts of land sought to be added, G.S.1935, 12-501. Guy A. Thompson, trustee of the Missouri Pacific Railroad Company (appellant here), owned a tract of land 216 feet wide and a half mile long in the described territory sought to be added. A hearing was held as provided in section 12-502, and on April 12, 1949, the board found:

'1. That there is an acute shortage of housing facilities in and about the City of Salina, Kansas, and that it is advisable to add said territory described and set out in said petition to the City of Salina, Kansas, and that it would be to the best interests of said City that said territory be added to it.

'2. That the addition of said territory to said City would not result in manifest injuries to the persons, trusts and corporations owning properties and tracts within said proposed additional territory.'

The only questions involved in this appeal are: (1) Is G.S.1935, 12-502a unconstitutional because it confers legislative authority upon the district court; and (2) if section 12-502a is unconstitutional, is the remainder of the act, G.S.1935, 12-501 and 12-502, also unconstitutional?

The legislature has seen fit to vest authority to change the boundaries of cities in the board of county commissioners. The general legislative scheme for the enlargement of city boundaries is found in G.S.1935, 12-501 et seq. When the city boundaries are to be enlarged, section 12-501 provides the governing body of the city shall in the name of the city present a petition to the board of county commissioners, and the following sections provide the procedure to be followed, and for the finding to be made by the board as follows: 'Upon such hearing, if said board of county commissioners shall be satisfied that the adding of such territory to the city will be to its interest and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall so find.'

After such finding, the governing body of the city may by ordinance enlarge the city to include the territory sought to be added. Section 12-502a, the constitutionality of which is here in question, provides for appeal from the board's findings to the district court. That section reads: 'Any owner of land sought to be taken into the limits of a city under the provisions of this act, who shall be aggrieved by the decision of the board of county commissioners may appeal to the district court of the same county in the manner and method as now provided by section 19-223, Revised Statutes of 1923.'

Section 19-223 provides: 'Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.'

Are the findings which the board of county commissioners is authorized to make legislative acts solely so as to preclude appeal to the district court as authorized by section 12-502a? Determination of this point involves examination of prior decisions on the question.

The county board in the exercise of its original jurisdiction has at least two questions to determine when a proper petition is presented: (1) Whether the proposed change can be made without manifest injury to the persons owning real estate in the territory sought to be added; and (2) if so, whether the annexation shall be ordered. The first determination is judicial; the second legislative. The first may be made reviewable by a court although the second cannot. We are not to impute to the legislatute an intention to disregard the constitution by attempting to give an appeal from a legislative order to a judicial tribunal, if such imputation can be avoided. There is abundant field for the operation of the statute without encroaching upon the legislative power of the board. The appeal provided may be deemed as intended to refer to the only part of the board's action to which it can be made applicable--the judicial part--in determining that no injury would result to landowners by the proposed change. Inasmuch as there is room for the statute to operate without infringing upon the constitution, it will not be held void merely because a literal interpretation of its terms might give it a broader operation which would result in such infringement. The appeal taken in the case should not have been dismissed, for it was effective at all events to bring before the district court for review the question whether the change ordered by the board would cause manifest injury to the appellants, and to empower the court, if it should find that to be the case, to set aside the order attaching territory to the city as having been made without authority. Nash v. Glen Elder, 74 Kan. 756, 88 P. 62; Nash v. Glen Elder, 81 Kan. 446, 106 P. 292; Town of Olsburg etc., v. Pottawatomie County, 113 Kan. 501, 215 P. 451; Bolmar v. Shawnee County, 109 Kan. 91, 197 P. 880.

Appellee city relies chiefly on the case of Ruland v. City of Augusta, 120 Kan. 42, 242 P. 456, 460, 117 A.L.R. 277, which involved a statute somewhat different from the one in the instant case. In the Ruland case, the legislature conferred original jurisdiction on the district court, R.S.1923, 12-501, 502, to hear and determine both legislative and judicial questions with reference to...