State ex rel. Jordan v. City of Overland Park

• Decision Date: 11 November 1974
• Docket Number: No. 47377,47377
• Citation: 527 P.2d 1340,215 Kan. 700
• Parties: The STATE of Kansas ex rel. Margaret W. JORDAN, District Attorney of the Tenth Judicial District, Appellee, v. The CITY OF OVERLAND PARK, a Municipal Corporation and a First Class City of Johnson County, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 1340

527 P.2d 1340

215 Kan. 700

The STATE of Kansas ex rel. Margaret W. JORDAN, District Attorney of the Tenth Judicial District, Appellee, v. The CITY OF OVERLAND PARK, a Municipal Corporation and a First Class City of Johnson County, Kansas, Appellant.

No. 47377.

Supreme Court of Kansas.

Nov. 11, 1974.

Rehearing Denied Dec. 11, 1974.

Syllabus by the Court

1. A city's annexation of land cannot be said to violate constitutional provisions in the sense of depriving persons within the territory added of property without due process of law or as denying them the equal protection of the laws.

2. The legislature has absolute authority to create or disorganize municipal corporations, to designate their limits, and to provide methods by which their boundaries may be increased or decreased.

3. The legislature may grant municipalities the authority to extend their boundaries provided the grant be accompanied by adequate standards or guideposts for its exercise.

4. In reviewing the action of a city in annexing territory the wisdom, desirability, expedience and advisability of its action is not within the judicial realm, and factors involving economic or political considerations are not matters for the courts to consider.

5. The basic function of the courts is to determine whether a city has statutory authority for its action in annexing land and whether it has acted within its authority in adopting an ordinance for that purpose.

6. Courts are not in a position to judge what a city's necessities or growth requirements may be, nor should they speculate as to the wisdom of municipal action in areas of annexation.

7. Where part of a statute can readily be severed therefrom, that part which is constitutional may stand while that which is unconstitutional may be rejected; but where the void and the valid parts are so interwined and connected that they cannot be separated without violating legislative intent, the whole statute must fail.

8. While the term 'perimeter' may be used in more than one sense, its common and ordinary connotation is that of encirclement, surrounding or circumscription.

9. It is a primary rule of statutory construction that the intent of the legislature in adopting the statute is to be ascertained where that is possible.

10. In determining legislative intent, courts are not limited to a mere consideration of the language employed but may properly look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished and the effect the statute may have under the various constructions suggestded.

11. K.S.A. 1970 Supp. 12-520(d) is construed as authorizing the annexation of unplatted land only where it lies within or mainly within the city and fifty percent (50%) or more of its perimeter is common to city boundaries.

12. The record is examined in an action challenging the validity of various annexations to the city of Overland Park, Kansas, and for reasons which are shown in the opinion it is held (1) the general annexation law, K.S.A.1970 Supp. 12-519 et seq., is not constitutionally impermissible for any of the reasons advanced, (2) subsection 12-525 should have been severed from the remainder of the statute, (3) the annexation of the land added to the city by ordinances A-643, A-644 and A-645 is valid, and (4) the annexation of the land added to the city by ordinances A-646, A-647, A-649, A-650 and A-651 is invalid.

John L. Vratil, of Bennett, Lytle, Wetzler & Winn, Prairie Village, argued the cause for the appellant.

Margaret W. Jordan, Dist. Atty., argued the cause, and Robert C. Londerholm, Olathe, was with her on the brief for the appellee.

Frank A. Bien, Topeka, was on the brief of League of Kansas Municipalities as amicus curiae.

Vern Miller, Atty. Gen., and John T. Moore, Asst. Atty. Gen., were on the brief of state of Kansas as amicus curiae.

FONTRON, Justice:

This action challenges the validity of a series of annexations to the city of Overland Park, Kansas. The trial court held the ordinances under which the annexations were accomplished to be invalid, and entered judgment in favor of the plaintiff. The city brings this appeal.

For the sake of clarity as well as convenience we shall refer to the appellee as the state, or plaintiff, and to the appellant as the city, or defendant.

Commencing August 16, 1971, and ending August 25, 1971, the governing body of Overland Park enacted eight separate ordinances annexing some 4780 acres of land lying to the south of the city's southern boundary as it then existed.

The ordinances, serially numbered A-643, A-644, A-645, A-646, A-647, A-649, A-650 and A-651, were adopted on eight successive days with this exception: None were passed on August 21 or August 22, which fell on a weekend, and on those days the city fathers took a breather and rested from their labors.

The trial court found the annexation ordinances were adopted pursuant to the provisions of the general annexation act, sometimes referred to herein as the act, which was passed by the Kansas Legislature in 1967. (House Bill No. 1333, L. 1967, ch. 98.) From its history, we understand this act was intended to provide uniform annexation procedures which would apply to all cities, regardless of class, by bringing together and codifying existing annexation laws which up to that time had been something of a hodgepodge. The act appeared in the statute books as K.S.A.1970 Supp. 12-519 to 12-526, inclusive, when this lawsuit was commenced and we shall continue to refer to it in that way although now it appears in the 1973 supplement.

In a preliminary way it can be said that § 2 of the act, K.S.A.1970 Supp. 12-520, sets out seven conditions under which a city may annex land by ordinance, and the governing board of Overland Park, in accomplishing the annexations of August 16-25, 1971, utilized five of them in combination. Except for tract 1 and the larger tract 3, the validity of each annexation was dependent upon the validity of one or more of these which had preceded it. In other words the city proceeded in 'bootstrapping' fashion, leapfrogging from one tract to the next.

That the reader may have a clearer understanding of the several annexation moves made by the city, a map has been prepared and made a part of this opinion, showing the configuration of the several areas annexed and their relationship each to the other. The numbers shown on the map indicate the sequence in which the tracts were added to the city's girth. For example, the area marked 1 was the first tract to be annexed; that marked 2 was the second; the two areas marked 3 were added by a third ordinance; area 4 was next in line; the several tracts shown as 5 and those shown as 6 were added next in sequence; and so on to the end, concluding with 8. We will refer to the tracts by those numbers.

The state alleges in its petition that K.S.A.1970 Supp. 12-519 through 12-526 is unconstitutional as violating the constitution of the United States and the constitution of the state of Kansas; that the ordinances enacted thereunder are void; and that the statute, even if valid, was unconstitutionally applied in this case. In a comprehensive memorandum opinion the trial court discussed the legal issues involved and came up with the following conclusions of law:

'1. The general annexation statute, K.S.A.1971 Supp. 12-519, et seq., are (sic) unconstitutional as an unlawful delegation of legislative power Article 2, Section I, Kansas Constitution, in that it lacks legislative standards or legislative policy.

'2. The general annexation statute, K.S.A.1971 Supp. 12-519, et seq., is unconstitutional as it violates the 'Due Process of Law' provision of the Kansas Constitution, the Bill of Rights, and the 'Due Process and Equal Protection Clauses' of the 14 Amendment to the Constitution of the United States.

'3. The general annexation statute, K.S.A.1971 Supp. 12-519, et seq., is unconstitutional in its use and application in the instant case.

'4. The perimeter provisions of the annexation statute, K.S.A.1971 Supp. 12-520(d), has (sic) been incorrectly interpreted and applied in the instant case, resulting in an unintended expansion of the power of the city to annex under this single provision.

'5. The perimeter provision of the annexation statute, K.S.A.1971 Supp. 12-520(d), is unconstitutionally vague and indefinite as to meaning.

'6. The annexation Act, K.S.A.1971 Supp. 12-519, et seq., is contrary to the Home Rule Amendment and is unconstitutional.'

It is our opinion that K.S.A.1970 Supp. 12-519 et seq., does not violate the due process provisions of the federal constitution or the constitution of this state. Many years ago, in Callen v. Junction City, 43 Kan. 627, 23 P. 652, this court expressed itself this way on the subject:

'. . . (T)he change of the status of a tract of land from a farm to city lots, by the exercise of a power granted cities to extend their limits, is not a deprivation of property without due process of law. . . .' (p. 630, 23 P. p. 653)

The Callen case reflects the generally prevailing rule in this country. In an annotation appearing in 64 A.L.R., Municipal Boundaries-Power to Extend, p. 1335, et seq., numerous authorities are cited at pages 1358 to 1364 supporting the proposition that acts taken extending municipal boundaries are not unconstitutional in the sense of depriving the people in the areas annexed of their property without due process of law.

Perhaps as clear a statement of this point of view as may be found was expressed by the Kentucky Supreme Court in Lenox Land Co. v. City of Oakdale, 137 Ky. 484, 489, 125 S.W. 1089, 1091:

'. . . (I)t has been repeatedly announced, by this court and others, that the question of due process of law or the taking of property without compensation has no application to the annexation of territory to a municipality. The extension or reduction of the boundaries of a city or town is held,...