Smith v. City of Emporia

• Decision Date: 12 November 1949
• Docket Number: No. 37791,37791
• Citation: 211 P.2d 101,13 A.L.R.2d 1272,168 Kan. 187
• Parties: , 13 A.L.R.2d 1272 SMITH v. CITY OF EMPORIA et al.
• Court: Kansas Supreme Court

Page 101

211 P.2d 101

168 Kan. 187, 13 A.L.R.2d 1272

SMITH v. CITY OF EMPORIA et al.

No. 37791.

Supreme Court of Kansas.

Nov. 12, 1949.

Rehearing Denied Dec. 16, 1949.

Syllabus by the Court.

In this jurisdiction actions questioning the validity of proceedings extending the corporate limits of a city cannot be maintained by private individuals and can only be prosecuted at the instance of the state by its proper officers.

Everett E. Steerman and Elvin D. Perkins, both of Emporia, argued the cause and were on the briefs for the appellant.

James W. Putnam, of Emporia, argued the cause, and Richard Mankin, of Emporia, was with him on the briefs for the appellees.

PARKER, Justice.

This is an injunction action in which a private individual seeks to question the validity of the annexation by ordinance of certain property to the City of Emporia, Kansas. The appeal is from a decree sustaining the defendant city's motion for judgment on the pleadings and taxing the costs of the proceeding against the plaintiff.

To clarify uncontroverted factual matters essential to a decision of the appellate issue involved it should first be stated (1) that on the 18th day of January, 1949, the governing body of the City of Emporia adopted, and thereafter duly published, ordinance No. 1681, whereby it attempted to extend the corporate limits of that city to include the property herein involved and therein described at Lots 85, 87, 91, 93 and 95 on Woodlawn Avenue in Woodlawn Park Addition to the City of Emporia, Lyon County, Kansas and (2) that such ordinance was enacted and such annexation attempted pursuant to and under the provisions of G.S.1935, 12-502, which authorized and empowered the city to annex adjacent territory by ordinance when such territory has already been subdivided into lots and blocks.

Within thirty days after publication of the ordinance heretofore mentioned the plaintiff instituted this action by the filing of a petition in district court where he alleged in substance, among other things not here important, that his property was neither adjacent to the city nor subdivided into lots and blocks and that therefore the action of the city in attempting to annex it was ultra vires and the ordinance itself was void.

Other pleadings, including an answer by the defendants and a reply by the plaintiff, appear in the record but we are not concerned with them since the rule, see Northington v. Northington, 158 Kan. 641, 149 P.2d 622; Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P.2d 879, is that a motion for judgment on the pleadings is tantamount to a demurrer, admits all facts well pleaded by the opposing party, and is only sustained when, notwithstanding such facts, it clearly appears the party making the motion is entitled to judgment.

The city's motion for judgment on the pleadings was sustained upon the single ground the plaintiff as a private citizen and the owner of the five lots in controversy within the territory sought to be annexed had no legal capacity to maintain the action.

Thus, since well pleaded allegations of the petition are to the effect the status of plaintiff's property is such that it does not come within the purview of the statute authorizing the city to annex territory by ordinance, it appears we have for decision the question whether, when the city has taken that action notwithstanding, the plaintiff as a private individual has legal capacity to maintain an action challenging the validity of the proceedings under which the city claims has property has been included within its corporate limits.

At the leginning of his argument in support of his position the trial court erred in sustaining the motion for judgment appellant recognizes the well established doctrine and admits that a private individual cannot collaterally attack the corporate existence of a municipal corporation. Our decisions on this subject are numerous but do not require specific citation since their force and effect is conceded. However, he insists that an entirely different rule prevails with respect to direct attacks upon the existence of such corporations and that in this jurisdiction they may be maintained by private individuals. Assuming, as he asserts, that his is a direct attack upon the validity of the involved annexation proceeding we believe he fails to grasp the full import of our decisions dealing with this particular subject.

Long ago, although the action sought to enjoin the collection of taxes and to that extent involved a collateral attack, this court took occasion to pass upon the rights of private individuals to challenge the corporate existence of municipalities. In Atchison, T. & S. F. R. Co. v. Wilson, Treas, 33 Kan. 223, 6 P. 281, pointing out that even though the action was of the character just noted it nevertheless involved the power of the school district to levy taxes for school purposes because of illegality in its organization, we held: 'Where a school-district has been organized under a valid law, and is in the exercise of corporate powers, the validity of its organization cannot be questioned at the suit of a private party, nor in a collateral action; * * *.' (Syl.)

And in the opinion said:

'* * * The legality of the organization cannot be questioned in a collateral proceeding, nor at the suit of a private party. The organization cannot be attacked, nor any action taken affecting the existence of the corporation, except in a direct proceeding prosecuted at the instance of the state by the proper public officer. * * *

'* * * Whether these reasons, or any of them moved the county superintendent to organize the district with so great an area, we cannot know; and whether they would be legally sufficient, we cannot determine in this proceeding.

'What we do decide is that there exists a valid law under which the organization can be made; that a corporation has been created thereunder and is an existence; and that if there were any irregularities or illegal action in its organization, either by reason of the boundaries established or otherwise, that it must be determined by a quo warranto proceeding brought by the state.' 33 Kan. at pages 228, 229, 6 P. at page 284.

Another decisive case, peculiary applicable because of the similarity of the attack made by the plaintiff is St. Joseph & G. I. Railway Co. v. School District, 114 Kan. 67, 217 P. 296. There the superintendent of public instruction had made an order undertaking to change the boundary of the school district so that it should include a portion of a large bridge owned by the defendant. The railway company filed suit in the nature of quo warranto askin--as here--that the attempted extension be declared a nullity and the school district be ousted from exercise of jurisdiction over the territory undertaken to be added. At page 68 of the opinion in that case in 114 Kan., at page 296 of 217 P. we said: '* * * Moreover, whatever procedure is adopted, the validity of the existence of a governmental corporation or quasi corporation can not be challenged in the courts by any one but the state, and this restriction applies where the matter in issue is the effectiveness of an attempted enlargement of its territory. * * *'

To the same effect is Elting v. Clouston, 114 Kan. 85, 217 P. 295, where we held: 'Rule followed that private persons have no standing to question the legality of proceedings to organize a rural high school district, nor to enjoin public officials from canvassing the votes cast at an election held pursuant thereto.' (Syl.)

Still another case is Euler v. Rossville Drainage District, 118 Kan. 363, 235 P. 95. The plaintiff in that action sought to enjoin the drainage district from entering upon his land for the purpose of making or constructing ditches or drains and as ground for relief charged that the original incorporation of the district was void. We held: 'The rule that only the state may challenge the existence of a governmental corporation or quasi public corporation is applied in an action brought by an individual to enjoin the construction of ditches or drains over his property.' (Syl. p1.)

And at page 364 of the opinion in 118 Kan., at page 96 of 235 P. said: '* * * It has been so repeatedly held that private individuals may not maintain an action, the direct purpose of which is to question the validity of corporate or quasi corporate organizations, that...