State ex rel. Kreamer v. City of Overland Park

• Decision Date: 11 April 1964
• Docket Number: No. 43357,43357
• Citation: State ex rel. Kreamer v. City of Overland Park, 391 P.2d 128, 192 Kan. 654 (Kan. 1964)
• Parties: The STATE of Kansas on relation of Hugh H. KREAMER, County Attorney of Johnson County, Kansas, Appellee, v. The CITY OF OVERLAND PARK, a First-Class City in Johnson County, Kansas, and a Municipal Corporation, Appellant, and The City of Merriam, a Second-Class City in Johnson County, Kansas, and a Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

Page 128

391 P.2d 128

192 Kan. 654

The STATE of Kansas on relation of Hugh H. KREAMER, CountyAttorney of Johnson County, Kansas, Appellee, v.The CITY OF OVERLAND PARK, a First-Class City in Johnson County, Kansas, and a Municipal Corporation, Appellant and The City of Merriam, a Second-Class City in Johnson County Kansas, and a Municipal Corporation, Appellee.

No. 43357.

Supreme Court of Kansas.

April 11, 1964.

Rehearing Denied May 19, 1964.

Syllabus by the Court

1.Municipal corporations are creatures of the legislature and they can exercise

only such powers as are conferred by law and those necessary to make the conferred powers effective.

2.The legislature has absolute authority to enact provisions by which the boundaries of municipal corporations will be increased or decreased.

3.The wisdom, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts.The basic function and duty of the courts is to determine whether a city has statutory authority and whether it has acted thereunder in passing an annexation ordinance.

4.A city has no authority to pass an ordinance annexing territory under the provision of G.S.1949, 13-202, where the tract sought to be annexed is separated from the boundary of the city by tracts, the annexation of which had not become effective.

5.A city has no authority to annex territory under the proviso of G.S.1949, 13-202, under the guise of straightening a boundary line, where the annexation would tend to compound an already irregular boundary line.

6.An action challenging the validity of a city annexation ordinance can be prosecuted only by the state acting through one of its proper officers, such as the county attorney or the attorney general.

Donald C. Amrein, Mission, argued the cause and appeared on the briefs for appellant.

Louis A. Silks, Jr., Merriam, argued the cause and appeared on the briefs for appelleeCity of Merriam.

William M. Ferguson, Atty. Gen., Topeka, and Hugh H. Kreamer, Olathe, appeared on the briefs for appellee State.

HATCHER, Commissioner:

This is an appeal from a judgment voiding certain city ordinances which sought to annex territory.

The facts are not in dispute but they are complicated by mete and bound descriptions of twelve separate tracts.We will not attempt specific descriptions.

Bounded by the city limits of the cities of Shawnee, Overland Park and Merriam were several tracts of land which had not been annexed to either of the cities.One tract was in excess of 80 acres.The other tracts consisted of ten acres or less and each was so situated that two-thirds of a line of boundary was the city limits of Overland Park except on ten acre tract which did not touch the city limits of Overland Park.All of the north line of the large tract was the city limits of the city of Merriam.

The city of Merriam announced its intention to annex all of the tracts and straighten out its boundary lines with 75th Street on the south and Antioch Road on the east.It had obtained the consent of the owner of the large tract and owners of six of the smaller tracts.Three of the smaller tracts consisted of hospital, school and cemetery grounds.

Soon after the city of Merriam announced its intention to annex the area, February 19, 1962, the mayor and councilmen of the city of Overland Park held a meeting at which time they enacted twelve separate ordinances annexing all of the small tracts and two parcels from the large tract.The ordinances were to become effective after their official publication which took place the next day.

About a week thereafter the city of Merriam enacted ordinances annexing the entire area.Some of the separate ordinances covered the same tracts as described and covered by the city of Overland Park ordinances.

The cities of Overland Park and Merriam filed their respective annexation ordinances with the county clerk and claimed the annexed tracts.The tracts in controversy were not platted.The cities and the area in dispute are located in Johnson County, Kansas.

The State of Kensas, on the relation of the county attorney of Johnson County brought an action naming the cities of Overland Park and Merriam as defendants.The petition, in the form of an ouster proceeding, challenged the validity of the Overland Park annexation ordinances, but requested the district court to determine the validity of the annexation ordinances of both cities.

The trial court entered judgment decreeing that all of the annexation ordinances of the city of Overland Park were valid except ordinances numbered A-142, A-143 and A-144, and that all annexation ordinances of the city of Merriam were void, which covered similar tracts, except ordinances 250, 252 and 253.The ordinances of the two cities specifically mentioned covered the same three tracts.

The city of Overland Park has appealed from the judgment.Neither the state nor the city of Merriam has appealed.We therefore have only the question of the validity of three city of Overland Park ordinances before us for determination.Both the state and the city of Merriam have filed briefs in support of the judgment of the trial court.

Before considering the validity of the ordinances in question, some general observations may be helpful.

Cities are creatures of the legislature.They can exercise only such powers as are conferred by law and those necessary to make the conferred powers effective.They acquire no power by implication.(State v. Hannigan, 161 Kan. 492, 170 P.2d 138andYoder v. City of Hutchinson, 171 Kan. 1, 8, 228 P.2d 918.)

The legislature has absolute authority to create or disorganize municipal corporations.It also has absolute authority to enact provisions by which their boundaries will be increased or decreased.(State ex rel. Foster v. City of Kansas City, 186 Kan. 190, 195, 350 P.2d 37.)

The wisdom, propriety, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts.(State ex rel. v. Kansas City, 12)Kan. 311, 321, 252 P. 714andState ex rel. Martin v. City of Kansas City, 181 Kan. 870, 877, 317 P.2d 806.)The basic function and duty of the courts is to determine whether a city has statutory authority and has acted thereunder in passing an annexation ordinance.

In State ex rel. Hawks v. City of Topeka, 175 Kan. 488, at page 491, 264 P.2d 901, at page 904, it is said:

'Preliminary to discussing the specific contentions later considered, and for the purpose of clarification, some general observations are in order.The first is that the advisability of enlarging the territorial limits of a city is a legislative function which cannot be delegated to the court.Ruland v. City of Augusta, 120 Kan. 42, 242 P. 456.The duty of the court is only to determine whether under the facts the city has statutory authority to enact the ordinance under...