State ex rel. Fatzer v. Urban Renewal Agency of Kansas City

• Decision Date: 28 April 1956
• Docket Number: No. 40184,40184
• Citation: 179 Kan. 435,296 P.2d 656
• Parties: The STATE of Kansas, on the Relation of Harold R. FATZER, Attorney General (John Anderson, Jr., substituted), and Donald E. Martin, County Attorney of Wyandotte County, Plaintiff, v. URBAN RENEWAL AGENCY OF KANSAS CITY, Kansas, and the City of Kansas City, Kansas, Defendants.
• Court: Kansas Supreme Court

Page 656

296 P.2d 656

179 Kan. 435

The STATE of Kansas, on the Relation of Harold R. FATZER Attorney General (John Anderson, Jr substituted), and Donald E. Martin County Attorney of Wyandotte County, Plaintiff, v. URBAN RENEWAL AGENCY OF KANSAS CITY, Kansas, and the City of Kansas City, Kansas, Defendants.

No. 40184.

Supreme Court of Kansas.

April 28, 1956.

Syllabus by the Court.

1. Judicial examination of any law enacted by the legislature proceeds on the assumption that it is valid unless it contravenes an express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument, and an act of the legislature is not to be stricken down on the ground it is unconstitutional unless infringement of the superior law is clear beyond reasonable doubt.

2. In an original action in quo warranto to oust defendants from proceeding under the provisions of Chapter 86, Laws of 1955, G.S.1955 Supp. 17-4742 to 17-4761, commonly known as the Urban Renewal Law, on the ground of invalidity of the act in several specified particulars, the record is examined and it is held: The act in question is not invalid for any of the reasons asserted.

Donald E. Martin, County Atty., Kansas City, John Anderson, Jr., Atty. Gen., Paul E. Wilson, Asst. Atty. Gen., and Newell A. George, Asst. County Atty., Kansas City, on the brief, for plaintiff.

David W. Carson and J. W. Mahoney, Kansas City, John K. Dear, Ernest N. Yarnevich, Myles C. Stevens and C. W. Brenneisen, Jr., Kansas City, on the brief, for defendants.

PRICE, Justice.

This is an original action in quo warranto to oust defendants from proceeding under the provisions of Chapter 86, Laws of 1955, G.S.1955 Supp. 17-4742 to 17-4761, commonly known as the Urban Renewal Law.

Allegations of the petition and answer will not be detailed. It is sufficient to say it is contended by plaintiff, and denied by defendants, that the act violates certain provisions of our constitution and is therefore unconstitutional and void. And neither do we consider it necessary to set out in full the act which covers over twenty-one pages of the 1955 Session Laws and nine pages of the statute book. Reference will be made to sections of the act.

In general, it may be said that the over-all purpose of the act, as expressed in the declarations of necessity found in section 2 thereof, is to enable certain cities to take steps to eliminate slum and blighted areas which constitute a serious and growing menace injurious of the public health, safety, morals and welfare of the residents of the state, the elimination of which is declared to be a matter of public policy.

Section 19 limits the application of the act to cities having a population of more than 75,000. It is conceded that Wichita, Kansas City and Topeka are the only cities to which the act presently applies.

Plaintiff's first contention is that the population limitation constitutes special legislation prohibited by article 2, section 17, of the constitution, which reads:

'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; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state: Provided, The legislature may designate areas in counties that have become urban in character as 'urban areas' and enact special laws giving to such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.'

In passing, it is to be noted that this section was amended by popular vote in 1954 by the addition of the language in the proviso. For purposes of this case, however, we need not discuss whether the addition of the proviso has any bearing on the question before us, and we therefore proceed to a discussion of the matter as though the section had not been amended.

The validity of similar legislation has been before this court in Redevelopment Authority of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P.2d 782, and State ex rel. Fatzer v. Redevelopment Authority of Kansas City, 176 Kan. 145, 269 P.2d 484. In each of those cases legislation then under consideration was held to be a special law where a general law could have been made applicable, and therefore unconstitutional. We consider it unnecessary to review in detail what was said and held in those cases, and reference is made to the opinions for the facts, questions involved, and reasons for the decisions.

In the first mentioned case it was held that for an act passed by the legislature to have uniform operation throughout the state, as required by the mentioned provision of the constitution, it need not affect every individual, class or community; that it is competent for the legislature to classify and adopt a law general in its nature to the class created, provided the classification so made be a natural one and not arbitrary, fictitious or capricious, and that ordinarily a classification based upon population is sufficient to satisfy the constitutional requirement provided it is based upon distinctions which have a reasonable and substantial relation to the subject matter of the act.

As stated, the act here under consideration applies only to cities having a population of more than 75,000. No other limitation is mentioned. Classifications based solely upon population quite uniformly have been held valid, provided, of course, they were based upon real and substantial distinctions which bore a reasonable and substantial relation to the subject matter involved. See State ex rel. Shaw v. City of Topeka, 168 Kan. 663, 215 P.2d 644; City of Lawrence v. Robb, 175 Kan. 495, 265 P.2d 317, and Common School District No. 6 of Wyandotte County v. Robb, 179 Kan. 162, 293 P.2d 230.

It is a matter of common knowledge that as cities become more populous they are more subject to slum and blighted areas which are injurious to the public health, safety, morals and welfare of the residents, and in our opinion the population of a city furnishes a legitimate ground for a classification and differentiation such as that contained in the act under consideration. We therefore hold that the act is not a special law within the prohibition of article 2, section 17, of the constitution.

It is next contended the act violates article 12, section 1, of the constitution, which reads:

'The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.'

A short answer to this contention is that we already have found the act to be general legislation rather than a special law, and in City of Lawrence v. Robb, 175 Kan. 495, 499, 265 P.2d 317, it was said that if an act be held to be general legislation the question of a special act conferring corporate powers needs no discussion.

The substance of plaintiff's next contention is that the act is unconstitutional because it authorizes a city to acquire land through the exercise of eminent domain for a private use as distinguished from a public use.

Section 8 of the act provides that a city may acquire by condemnation any interest in real property which it may deem necessary in connection with an urban renewal project. Under section 9 a city is given authority to sell, lease or otherwise transfer property which has been acquired by purchase, condemnation or otherwise, to private redevelopers, subject always to limitations and restrictions enumerated in the act which obligate such purchasers or lessees to devote the property only to the uses specified in the urban renewal plan. Because of this it is argued that inasmuch as private individuals or corporations might stand to profit from the undertaking, the use and purpose would thus be private rather than public.

It is elementary that the legislature possesses no power to authorize the appropriation of one's property for a private use or purpose, but it is equally well-settled that the right to take private property for a public use is inherent in the state, and that the legislature may authorize the acquisition and appropriation of private property for a public use provided the owner is compensated therefor. Ottawa Hunting Ass'n v. State, 178 Kan. 460, 464, 289 P.2d 754. The difficulty often encountered lies in the inability of courts comprehensively to define the concept of a public use or purpose, due, no doubt, to the exigencies shown by the facts and the diversity of local conditions and circumstances in an everchanging world.

In our opinion the...