State ex rel. Dawson v. City of Harper

• Decision Date: 06 March 1915
• Docket Number: 19288
• Citation: 146 P. 1169,94 Kan. 478
• Parties: STATE EX REL. DAWSON, ATTY. GEN., v. CITY OF HARPER.
• Court: Kansas Supreme Court

146 P. 1169

94 Kan. 478

STATE EX REL. DAWSON, ATTY. GEN., v. CITY OF HARPER.

No. 19288

Supreme Court of Kansas

March 6, 1915

Syllabus

In a proceeding by the state in courts of general jurisdiction to inquire by what authority a municipality exercises governmental functions, the doctrine that the burden of proof is upon the defendant, and that the state is not required to show anything, rests upon the common-law theory as to the nature and character of information in quo warranto, and has no application in this state.

Section 679 of the Code of Civil Procedure (Gen. St. 1909 § 6275) abolishes the writ of quo warranto and substitutes therefor a civil action governed by the same rules of procedure as other actions. Presumptions as rules of evidence may be invoked against the state in such an action as readily as against an individual in ordinary civil actions.

Appeal from District Court, Harper County.

Quo warranto by the State, on the relation of John S. Dawson Attorney General, against the City of Harper. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter judgment for defendant.

Geo. E. McMahon and Donald Muir, both of Anthony, for appellant.

John S. Dawson, Atty Gen., and T. A. Noftzger, of Wichita, and Vernon Day, of Anthony, for appellee.

OPINION

PORTER, J.

By this proceeding the state, on the relation of the Attorney General, inquires by what warrant the defendant exercises its jurisdiction as a city of the second class over certain territory. The city filed its answer setting out the facts upon which it relied, to which the plaintiff demurred. The district court sustained the demurrer, and, the city having elected to stand upon its demurrer, the court rendered judgment ousting the city from exercising or claiming any municipal control or supervision over the territory in controversy and the inhabitants thereof.

The appeal presents the question whether the demurrer was rightly sustained, and this depends upon whether or not the land involved is a part of the city. The following facts appear from the answer: The city of Harper during the year 1884 was a city of the third class. During that year the then owner of the land described in plaintiff’s petition duly made and executed a plat comprising the land in controversy, and filed the same in the office of the register of deeds of Harper county as and for an addition to the city of Harper. The lands comprised in the plat lay adjacent to the territory then comprising the city. Part of the land was platted, and part unplatted. The portion platted was divided into blocks to correspond in size to the blocks within the corporate limits of the city, and the streets and avenues described in the plat were made to correspond to the streets and avenues existing in the city, and were given upon the plat the same name as the streets and avenues of the city to which they corresponded. A copy of the plat was attached to the answer. The city continued to exist as a city of the third class until the year 1889, when proceedings were had to change the organization from that of the third to a city of the second class, as provided by law. As part of such proceedings, the mayor and council made out and transmitted to the Governor an accurate description by metes and bounds of all lands within the limits of the city as it then existed, in which description was included the territory now in controversy. Thereafter the Governor issued a proclamation declaring the defendant to be a city of the second class having the metes and bounds so certified by the mayor and council. Since 1884 the land herein involved has been treated by the owners and by the city in every respect as part of and within the corporate limits of the city.

At the time the plat of this land was executed and filed for record, the only statutory provision respecting the power of a city of the third class to extend its limits was embraced in section 2 of chapter 37 of the Laws of 1883. So much of section 2 of the act as is applicable here reads:

"The city council in their discretion may add to the territory adjacent to the city limits as defined and existing at the date of the approval of this act such additional territory as they may deem proper, and shall in every case have power to increase or diminish the city limits in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, that in no case shall any adjacent territory, except when divided into town lots, be added to the limits of a city without the consent in writing of the owner of the territory proposed to be added."

Substantially the same provision was in section 56 of chapter 26 of the Laws of 1869, which was the first act of the Legislature authorizing the organization of cities of the third class. Atchison & N. R. Co. v. Maquilkin, 12 Kan. 301. The act provides for no special procedure for acquiring new territory, but leaves it to the discretion of the council to add additional territory as they may deem proper, and "in such manner" as in their judgment and discretion will redound to the benefit of the city. Except when divided into town lots, however, no adjacent land was to be added to the limits of the city without the consent in writing of the owner. The plat, a copy of which is attached to the answer, shows that only a portion of the land embraced in the plat was divided into town lots, and it is this portion of the tract over which the controversy in the present case arises. The act makes no provision as to where the consent shall be filed, and we think there can be no question that the filing of it in the office of the register of deeds was sufficient. The procedure for extending the boundaries of the cities of the third class at that time was very informal. It...