State ex rel. Beck v. Kansas City

• Decision Date: 28 January 1939
• Docket Number: 34209.
• Parties: STATE ex rel. BECK, Atty. Gen., v. KANSAS CITY et al.
• Court: Kansas Supreme Court

86 P.2d 476

149 Kan. 252

STATE ex rel. BECK, Atty. Gen., v. KANSAS CITY et al.

No. 34209.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

Constitutional provision that powers conferred on cities by law shall be so restricted as to prevent abuse of such power is largely admonitory and addressed to Legislature's wisdom. Const art. 12, § 5.

Statute dealing with issuance of revenue bonds in cities having population over 115,000 for public levees and facilities does not violate constitutional provision providing that powers conferred on cities by law shall be so restricted as to prevent abuse of such power. Gen.St.1935, 13-1238 et seq., as amended by Laws 1937, c. 135; Const. art. 12, § 5.

Under statute dealing with issuance of revenue bonds in cities having population over 115,000 for public levees and facilities, Kansas City, Kan., had authority to issue revenue bonds to obtain funds for construction of wholesale terminal fruit and vegetable market. Gen.St.1935, 12-672, 13-1239 to 13-1243, 13-1245; 13-1238 et seq., as amended by Laws 1937 c. 135; Gen.St.Supp.1937, 13-1238, 13-1244.

Proposed revenue bonds to be issued by city to obtain funds for construction of wholesale terminal fruit and vegetable market, which were payable solely from revenue received from market and from public levee and facilities connected therewith, were not "general obligations" of city and could not be paid from taxes assessed against general property. Gen.St.1935, 13-1238 et seq., as amended by Laws 1937, c. 135.

Proceedings leading up to proposed bond issue of $3,000,000 were neither irregular nor invalid because city's preliminary procedural steps contemplated possible issue of bonds in amount of $4,000,000. Gen.St.1935, 13-1238 et seq., as amended by Laws 1937, c. 135.

In original proceedings in quo warranto, where the state challenged the right of Kansas City and its governing officials to issue certain bonds to improve and enlarge the existing facilities of the city's public levee and to extend the same so that a wholesale fruit and vegetable market can be conducted thereat, the issues of law raised by the pleadings considered and held:

(1) That chapter 43 of the Laws of 1933 (Special Session), as amended by chapter 135 of the Laws of 1937, does not violate Article 12, section 5, of the constitution.

(2) That chapter 43 of the Laws of 1933 (Special Session), as amended by chapter 135 of the Laws of 1937, vests in the defendant city power and authority to issue revenue bonds for the purpose of obtaining funds for the construction of a wholesale terminal fruit and vegetable market, and that such power and authority to construct such market are vested in said city by that statute and other statutes heretofore enacted.

(3) That the revenue bonds authorized to be issued under the provisions of pertinent city ordinances referred to in this opinion will not constitute general obligations of the city of Kansas City; and that such bonds cannot be paid from taxes assessed against the general property in said city.

(4) The covenants and agreements contained in the questioned bond issue are in conformity with the bond ordinances authorizing their issue, and the ordinances are authorized by the pertinent statutes.

(5) The proceedings leading up to the questioned bond issue of $3,000,000 are neither irregular nor invalid because the city's preliminary procedural steps contemplated a possible issue of bonds for a larger amount --following City of Oswego v. Davis, 97 Kan. 371, 154 P. 1124.

Supplemental opinion.

For former opinion, see 148 Kan. 623, 84 P.2d 409.

Clarence V. Beck, Atty. Gen., and Theo. F. Varner, Asst. Atty. Gen for plaintiff.

Alton H. Skinner, City Atty., Joseph A. Lynch, Deputy City Atty. A. L. Berger, E. S. McAnany, James L. Hogin, and Donald Corson, all of Kansas City, for defendants.

C. W. Trickett, of Kansas City, amicus curiae.

DAWSON Chief Justice.

The state filed quo warranto proceedings against Kansas City and its officials, challenging their right to exercise certain corporate powers in relation to the further industrial development of certain municipal property, earlier phases of which are already chronicled in our reports. Kansas City v. Board of County Com'rs of Wyandotte County, 117 Kan. 141, 230 P. 79; State, ex rel. v. Kansas City, 140 Kan. 471, 37 P.2d 18; Robertson v. Kansas City, 143 Kan. 726, 56 P.2d 1032.

The legal questions of present concern arose last November, and a prompt decision thereon was urgently desired on account of a tendered grant of federal funds in aid of the projected improvements which had to be accepted, if at all, by a fixed date, and it was only to be available if the procedural steps had the authoritative sanction of this court. In part, this action is to procure a declaratory judgment, and this court regards it as such, and as authorized by statute (G.S.1935, 60-3127).

The cause was heard as soon as counsel for the state and the city could present it. The court gave judgment for the city, accompanied by a per curiam opinion for whatever immediate light on our decision it might give. State ex rel. v. Kansas City, 148 Kan. 623, 84 P.2d 409. Our present more formal opinion has had to await our convenience in its preparation. Such disposition of cases of pressing public concern is not altogether without precedent. Welsbach Street Lighting Co. v. Public Utilities Commission, 101 Kan. 438, 166 P. 514; Id., 101 Kan. 774, 169 P. 205, L.R.A.1918D, 310.

In this case it appears that the defendant city and its governing body have set about the establishment of a wholesale fruit and vegetable terminal market on the municipal levee. To that end they determined to issue certain bonds, the proceeds of which should be used, in part, to retire certain outstanding levee bonds heretofore issued by the city; the remainder to be used in conjunction with a federal grant of funds for the construction and extension of the existing facilities of the public levee and to enlarge its present terminals.

The statutes cited by the city to authorize its questioned powers are G.S.1935, 12-672; 13-1239 to 13-1243; 13-1245; G.S. 1937 Supp. 13-1238 and 13-1244. The ordinances of the city enacted pursuant to these provisions of statute are No. 30206, approved November 1, 1938, and No. 30239, amending Sections 7 and 13 of No. 30206, effective on some subsequent date not shown.

By these ordinances, a $4,000,000 bond issue is authorized, to be designated Public Levee Terminal Revenue Bonds, of which a sale of only $3,000,000 of this issue is now contemplated. The estimated cost of the proposed improvements is $3,799,035. The conditions of the federal grant required, among other matters, that work on the improvement had to be commenced within nine weeks from October 24, 1938; and noncompliance therewith would defeat the grant.

In the state's petition for a judgment in quo warranto, the attorney general raised pertinent legal questions requiring an authoritative adjudication before the city and its officials and all concerned could safely proceed with the important undertakings contemplated. A solicitous concern for the protection of the taxpayers of Kansas City is manifested by the attorney general and by an amicus curiae who also submitted a brief. This solicitude is commendable, and so we shall take up seriatim the questions raised by the state.

The statutory authority under which the city assumes to exercise the challenged powers is Chapter 43 of the Special Session Laws of 1933, as amended by Chapter 135, Laws of 1937 (G.S.1937 Supp. 13-1238 et seq.). The constitutionality of the act of 1933 has already been vindicated by this court. State ex rel. v. Kansas City, 140 Kan. 471, 37 P.2d 18. The question now raised is whether this statute as amended violates that part of Sec. 5 of Art. 12 of the state constitution which provides that the powers conferred on cities by law "shall be so restricted as to prevent the abuse of such power."

This provision has been the subject of judicial exposition ever since the foundation of the state. It scarcely states a rule of constitutional law that a court can lay hold of. It is largely admonitory and was intended by the framers of our constitution to be addressed to the wisdom and conscience of the legislative branch of our state government. Hines et al. v. City of Leavenworth et al., 3 Kan. 186, 203, 204; City of Newton v. Atchison, 31 Kan. 151, 1 P. 288, 47 Am.Rep. 486; Wulf v. Kansas City, 77 Kan. 358, 362, 94 P. 207; State v. Keener, 78 Kan. 649, 651, 97 P. 860, 19 L.R.A.,N.S., 615; State ex rel. v. Kansas City, 125 Kan. 88, 90, 262 P. 1032.

Speaking of this clause of the constitution in Hines et al. v. City of Leavenworth et al., supra, Mr. Chief Justice Crozier said: "It is not a subject proper for judicial cognizance but belongs to another tribunal. It would involve the exercise of a discretion that the framers of the constitution never intended should be deposited in any court. It would in effect constitute the court a law-maker rather than a law expounder. When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It is a subject wholly under the control of the political departments of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final." Pages 203, 204.

An examination of the statute under which the challenged proceedings are being undertaken will reveal a number of restrictions which the...