State ex rel. Miller v. Common School Dist. 87, Brown County

• Decision Date: 23 October 1947
• Docket Number: 37066.
• Parties: STATE ex rel. MILLER, County Attorney, v. COMMON SCHOOL DIST. NO. 87, BROWN COUNTY, et al.
• Court: Kansas Supreme Court

185 P.2d 677

163 Kan. 650

STATE ex rel. MILLER, County Attorney, v. COMMON SCHOOL DIST. NO. 87, BROWN COUNTY, et al.

No. 37066.

Supreme Court of Kansas

October 23, 1947

Syllabus by the Court.

1. Curative statutes may be enacted by the legislature to validate any proceeding which it might have authorized in advance or might have dispensed with altogether provided such legislation does not impair vested rights.

2. School districts are purely creatures of the legislature and subject not only to its power to create but its power to modify or dissolve.

3. There are no vested rights in the existence of a school district. The legislature has authority to extend or limit school district boundaries, to consolidate two or more districts as one, or to abolish a district altogether.

4. Constitutionality of a statute is presumed. If its language is ambiguous, it is to be interpreted as constitutional rather than as unconstitutional.

5. Laws 1947, Ch. 377, examined and construed, and held, that the purpose to be served thereby was to validate certain school districts which the legislature itself could have created that no contract or vested rights are involved, and that the statute is not unconstitutional for the asserted reason it attempted to validate Laws 1945, Ch. 291 (G.S.1945 Supp. Ch 72, Art. 56), which had been declared unconstitutional.

6. The above statute further examined and construed, and held, that the various provisions thereof have a definite relation to the general purpose of validation of certain school districts; that the several provisions are germane to the same general purpose, are not separate, incongruous or independent, and do not constitute more than one subject not clearly expressed in the title of the act, and for that reason the act does not violate Art. 2, § 16 of the state constitution.

7. The above statute further examined and construed, and held, that the act does not amend G.S.1945 Supp. 72-301 and 72-5616 and that it does not violate Art. 2, § 16 of the state constitution providing that no act shall be amended unless the new act contain the entire act amended and repeal the section or sections so amended.

8. The above statute further examined in connection with a contention that the provisions in the third 'Provided,' in section 2 thereof, constitute an unconstitutional delegation of legislative power under Art. 2, § 1 of the state constitution, and held, that this court ought not to consider the constitutionality of the statute in any particular not necessary to a decision and that under the facts of the cause, there is no such necessity.

Harry E. Miller, Co. Atty., of Hiawatha, for plaintiff.

Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn, Atty. Gen., on the brief), for defendants.

Arno Windscheffel, of Smith Center, Wm. B. Ryan and Keith G Sebelius, both of Norton, John F. O'Brien, of Independence, Paul R. Wunsch, of Kingman, Alex Hotchkiss, of Lyndon, George Templar and Earle N. Wright, both of Arkansas City, Steadman Ball, of Atchison, and Harold H. Malone, Paul V. Smith, W. Jay Esco, E. Lael Alkire, Frank T. Malone, and D. Emmett Foley, all of Wichita, amici curiae.

THIELE Justice.

This is an original proceeding in quo warranto, its essential purpose being to obtain a determination of the validity of statutes later mentioned and which purport to validate the establishment of certain school districts. After the defendants had answered, the plaintiff moved for judgment on the pleadings and the cause was briefed and argued on that motion. Upon consideration of the matter, this court on October 9, 1947, made its order that judgment should be rendered in favor of defendants and that its written opinion should be filed when it could be prepared.

Stated in a summary way, the petition alleges that pursuant to Laws 1945, Ch. 291 (the school reorganization bill) appearing as G.S.1945 Supp., Ch. 72, Art.

56, the duly appointed reorganization committee of Brown County, following proceedings had under the above act, on December 5, 1946, made its order disorganizing then existing common school districts, numbers 18, 35, 61 and 65 in Brown County and purporting to create a new district designated as common school district No. 87, and filed that order with the county superintendent of Brown County, and caused it to be published and served in time and manner provided by the above statute; that the school patrons and school districts affected by that order did not apply for a rehearing as authorized by the above statute and the order became final on January 18, 1947; that for the purpose of making the final order effective and to comply with the above statute, the county committee designated a time and place for the election of a school board and duly posted notices thereof and on February 18, 1947, the individual defendants were duly elected and qualified. It is also alleged that at a purported annual meeting of common school district No. 87, held on April 11, 1947, the defendants were re-elected to their respective offices and qualified. Plaintiff then alleges that on June 27, 1947, this court, in an action entitled State ex rel. v. Hines et al., 163 Kan. 300, 182 P.2d 865, held all provisions of the above statute unconstitutional and void, and, in brief, that the acts of the committee, in the attempted disorganization of common school districts numbers 18, 35, 61 and 65 were wholly void as was its purported attempt to create the new common school district No. 87, but notwithstanding, defendants called and held an annual meeting for common school district No. 87 on April 11, 1947, at which meeting the electors of the district attempted to re-elect defendants to their respective offices, to adopt a budget, to employ a teacher, and to provide other necessary functions of the purported district. Plaintiff further alleges that at the 1947 session the legislature enacted bills now appearing as Laws 1947, Ch. 375, and Laws 1947, Ch. 377, purporting to validate all orders of the county committee which organized a new district, quotation being made of a part of the last statute, and that each statute is unconstitutional, void and of no effect for the reason that said statutes purport to validate acts done and school districts created pursuant to a law which has been declared by this court to be unconstitutional and void. Unconstitutionality of Laws 1947, Ch. 377, is further asserted on three other grounds: 1. That the statute contains more than one subject, thus violating Art. 2, § 16 of the constitution of this state; 2. that the statute amends G.S.1945 Supp. 72-301 and 72-5616 without containing the sections amended and repealing them, thus violating the last mentioned section of the constitution; and 3. that section 2 of the statute purports to vest legislative power in the county superintendent and the county reorganization committee, in violation of Art. 2, § 1 of the state constitution. The prayer is that defendants be compelled to show by what authority they exercise their powers as officers of the district and that they be ousted from usurping purported authority attempted to be conferred upon them by the above mentioned statutes; that purported common school district No. 87 be set aside and dissolved; that common school districts numbers 18, 35, 61 and 65 be adjudged valid and existing and that Laws 1947, Ch. 375, and Laws 1947, Ch. 377, be declared unconstitutional and void.

Defendants in their answer do not deny the facts pleaded as outlined above, but do deny the legal conclusions pleaded with respect thereto. They allege that the legislature, under Art. 2, § 1 of the state constitution has power and authority to validate matters legislative in character sought to be exercised by Laws 1945, Ch. 291, and to establish and make valid school districts created thereunder by orders which became final on or before March 1, 1947, and that the enactment of Laws 1947, Ch. 375, and Laws 1947, Ch. 377, created new school districts which the legislature is authorized to establish pursuant to Art. 2, § 1, and Art. 6, § 2, of the state constitution. Defendants also deny that Laws 1947, Ch. 377, is unconstitutional for any of the reasons asserted in the petition. Allegations as to the number of school districts created under G.S.1945 Supp., Ch. 72, Art. 56, where orders become final on or before March 1, 1947, and which are validated by the 1947 acts, amounts of bonds issued, and such allegations need not be repeated. The prayer of the answer is that the validating acts mentioned be held to be constitutional, and that proceedings complained of be adjudged to be proper and lawful.

In reviewing the pleadings we have not set forth allegations that an actual controversy exists as to the rights of the various parties, nor their requests for a declaratory judgment.

Preliminary to a discussion of the propositions of law involved, it may be said in addition to the briefs filed by plaintiff and defendants, six briefs have been filed by amici curiae. In these briefs are citations of many authorities, many of the authorities cited being cumulative in character. For that reason no attempt will be made to refer to many of the decisions and texts mentioned in the briefs.

In presenting his contentions that Laws 1947, Ch. 375, and Laws 1947, Ch. 377, are invalid, plaintiff states four propositions, which will be treated in the order presented.

I.

It is first contended the above acts are unconstitutional and void for the reason the legislature cannot validate a statute that has been declared unconstitutional. As a preliminary to this contention plaintiff directs attention to the fact that the creation of a school district is a legislative function, and that may be conceded. See State ex rel. v....