State ex rel. Stephan v. Lane

• Decision Date: 18 July 1980
• Docket Number: No. 51831,51831
• Parties: STATE of Kansas ex rel. Robert T. STEPHAN, Attorney General, Plaintiff-Appellant, and Cross-Appellee, v. V. J. LANE, Woodlawn Cemetery Association, Unknown Cemetery Corporations, and Brotherhood State Bank, Defendants, and City of Kansas City, Kansas, Intervenor-Appellee, and Cross-Appellant.
• Court: Kansas Supreme Court

Page 987

614 P.2d 987

228 Kan. 379

STATE of Kansas ex rel. Robert T. STEPHAN, Attorney General, Plaintiff-Appellant, and Cross-Appellee, v. V. J. LANE, Woodlawn Cemetery Association, Unknown Cemetery

Corporations, and Brotherhood State Bank, Defendants,

and

City of Kansas City, Kansas, Intervenor-Appellee, and Cross-Appellant.

No. 51831.

Supreme Court of Kansas.

July 18, 1980.

Syllabus by the Court

1. This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold a statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

2. A state possesses an inherent power to regulate certain businesses and professions for the good of society. This "police power," as the term has become known, gives a state the right to act to protect and promote public health, safety, morals, peace, quiet, and law and order.

3. The police power of the State extends not only to the protection of the public health, safety and morals, but also to the preservation and promotion of the public welfare.

4. The subject of burial grounds in general, and cemetery corporations in particular, is a legitimate subject for exercise of the State's police power.

5. A cemetery, by inherent nature, is not subject to the laws of ordinary property.

6. A cemetery corporation is usually organized for a public rather than private purpose, and the cemetery management is in the nature of a trust.

7. Because ordinary rules of property ownership do not apply to cemeteries, and management of a cemetery corporation is similar to a trust, the title to cemetery property held by a cemetery corporation does not represent the same property interest normally associated with title to real property.

8. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.

9. The general rule is that, unless there are some statutory provisions clearly requiring it, on the happening of the event giving rise to a right to forfeiture it does not of itself operate, ipso facto, as a dissolution, but simply affords ground on which the State may maintain judicial proceedings therefor; and that the corporation continues to exist until the sovereignty which created it shall by proper proceedings in a proper court procure a final adjudication of forfeiture or dissolution.

10. The legislative intent in K.S.A.1979 Supp. 17-1367 was to direct the attorney general to proceed in a district court, in the name of the State, to dissolve the cemetery corporation by an appropriate action pursuant to chapter 60, Kansas Statutes Annotated. An action filed in the district court will ensure procedures designed to fulfill the requirements of due process notice and hearing.

11. The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. In determining legislative intent the court may properly look to the purpose to be accomplished, and the necessity and the effect of the statute.

12. To justify the State's assertion of its authority in behalf of the public, it must appear that the interests of the public require such interference; that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. Debatable questions as to reasonableness are not for the courts but for the legislature. Whether the regulation imposed by the act is reasonable depends upon such things as the nature of menace against which it will protect, the magnitude of the curtailment of individual rights affected, and the availability and effectiveness of other less drastic protective measures.

13. There is no constraint on the exercise of the State's police power which requires the legislature to define or classify the subject of its power in accordance with old common law definitions or concepts. In fact, the very essence of the need to exercise police power may arise from a recent development which is not encompassed by traditional or common law concepts.

Jeffrey S. Southard, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the briefs for appellant and cross-appellee.

Kathryn Pruessner Peters, Asst. City Atty., argued the cause, and Robert J. Watson, City Atty., was with her on the brief for appellee and cross-appellant.

SCHROEDER, Chief Justice.

This is an appeal by the attorney general from a decision of the trial court holding that a proceeding under K.S.A. 1979 Supp. 17-1366 et seq., constitutes an unconstitutional taking of private property, without due process and without just compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

The 1979 Kansas legislature passed an act relating to the maintenance of abandoned cemeteries, K.S.A. 1979 Supp. 17-1366 through -1368. Pursuant to the terms of the act the attorney general investigated the Woodlawn Cemetery, in Kansas City, Kansas, and determined it to be an "abandoned cemetery," as defined in the act. Specifically, investigation by the attorney general determined, and he alleged in his petition: Weeds and grass had not been cut; graves, markers, walls, fences and driveways had not been cared for; proper maintenance had been lacking for an unknown time period, exceeding one year; and the Woodlawn Cemetery Association had made no annual reports to the secretary of state, as required by K.S.A. 1979 Supp. 17-1312a.

An affidavit of Virgil and Anna Huntington, dated June 5, 1979, states:

"1. For the last fifteen years we have held the occupation of grave-diggers in Woodlawn Cemetery.

"2. We are the parties primarily responsible for burying individuals owning lots in Woodlawn Cemetery located in Wyandotte County.

"3. We do have occasion to view Woodlawn Cemetery on a regular basis.

"4. Since the passing of Mrs. A. J. Herrod in January of 1978, there has been only spot maintenance. Walls, fences, and driveways need repair.

"5. We are aware of no specific owners for the Woodlawn Cemetery.

"6. Mrs. A. J. Herrod was just an interested party for Woodlawn Cemetery and while living did as much cleaning as possible, on funds donated by plot owners."

An affidavit of Jack H. Brier, secretary of state of the State of Kansas, dated May 16, 1979, certified "that a search of our records does not reveal that a corporation by the name WOODLAWN CEMETERY, Wyandotte County, Kansas has ever been either incorporated in the State of Kansas as a domestic corporation, or authorized to do business in Kansas as a foreign corporation."

The attorney general filed an action in Wyandotte County District Court against the Woodlawn Cemetery Association and other named defendants. The petition was filed pursuant to K.S.A., Chapter 60, and was captioned: "PETITION TO DISSOLVE CEMETERY CORPORATIONS AND TRANSFER TITLE TO PROPERTY OF SAME TO THE MUNICIPALITY OF KANSAS CITY, KANSAS." Named as defendants were V. J. Lane, the association, and Brotherhood State Bank. V. J. Lane was the president of the association at the time the cemetery was platted; Woodlawn Cemetery Association was the cemetery's last known owner; Brotherhood State Bank (now Brotherhood Bank and Trust Co.) possessed the cemetery maintenance fund of approximately $735. All unknown cemetery associations which might have an interest in Woodlawn Cemetery were also listed as defendants. Notice by publication was printed in the appropriate newspapers pursuant to K.S.A. 60-307. Brotherhood State Bank was the only defendant to file an answer. The bank admitted holding funds owned by the Woodlawn Cemetery Association, or others, or on behalf of the association. The bank's answer alleged the exact ownership of the money was unknown to the bank, and the bank submitted the question of ownership of the funds to the trial court.

The City of Kansas City, Kansas, was permitted to intervene in the action. The trial court determined the City has a personal stake in the outcome of the controversy because the proceeding under the act would transfer to the City the cemetery's title and responsibility for cemetery maintenance. The matter was submitted to the trial court on motion for summary judgment by both the attorney general and the City.

In a memorandum opinion the trial court held K.S.A. 1979 Supp. 17-1366 through -1368 to be unconstitutional. The court held the provisions of the act which transfer title to the cemetery property are beyond the legitimate scope of police power regulation and constitute a "taking" of private property. The trial court also held the act does not provide for due process or just compensation prior to the taking of title. The trial court rejected the City's argument that the act violates the doctrine of separation of powers. The trial court also rejected the City's argument that the act's definition of abandoned cemetery, and the legislature's failure to adopt alternative methods, were an unreasonable, arbitrary and excessive exercise of police power.

The attorney general has appealed from the decision of the trial court holding the act to be unconstitutional; and the City has cross-appealed the decision of the trial court rejecting the City's argument on separation of powers and exercise of police power.

The act which spawned this suit provides:

"17-1366. Maintenance of abandoned cemeteries; definitions. As used in this act: (a) 'Abandoned cemetery' means any cemetery owned by a corporation, as defined in K.S.A. 1979 Supp. 17-1312f, in which, for a period of at least one year, there has been a...