State ex rel. Tomasic v. Unified Government of Wyandotte County/Kansas City, Kan., 80223

• Citation: 264 Kan. 293,955 P.2d 1136
• Decision Date: 06 March 1998
• Docket Number: No. 80223,80223
• Parties: STATE of Kansas ex rel. Nick A. TOMASIC, Wyandotte County District Attorney, Relator, v. The UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, Respondent.
• Court: United States State Supreme Court of Kansas

Page 1136

955 P.2d 1136

264 Kan. 293

STATE of Kansas ex rel. Nick A. TOMASIC, Wyandotte County District Attorney, Relator, v. The UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY KANSAS, Respondent.

No. 80223.

Supreme Court of Kansas.

March 6, 1998.

Syllabus by the Court

1. It is a fundamental rule that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby.

2. The constitutionality of a statute is presumed, 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.

3. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

4. Consolidating the governments of a city and a county is a legislative power.

5. The legislature may enact general provisions and delegate to an administrative body the power to fill in the details if the legislature establishes reasonable and definite standards to govern the administrative body's exercise of authority.

6. Where flexibility in fashioning administrative regulations to carry out statutory purpose is desirable in light of complexities in the area sought to be regulated, the legislature may enact statutes in a broad outline and authorize the administrative agency to fill in the details. Standards may be implied from the statutory purpose.

7. Kansas follows the modern trend that requires less detailed standards and guidance to administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems.

8. Older statutes are subordinate to new enactments, as the newer statutes are the later expression of the legislative intent and so will control if there is a possible conflict between the two.

9. General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.

10. Once the legislature has delegated by a law a function to the executive branch, it may only revoke that authority by proper enactment of another law in accordance with the provisions of art. 2, § 14 of our state constitution.

11. Where parts of a statute or a section of a statute can be readily separated, then the part which is constitutional may stand while the unconstitutional part is rejected.

12. The legislature may give voters permission to form themselves into a certain form of local government, and when, by the proper election, they avail themselves of this permission, they are not exercising legislative power, but merely accepting a privilege conferred by a proper exercise of such power.

13. K.S.A.1997 Supp. 19-101a(a)(2) only applies to counties consolidating with one another and does not apply to a county consolidating with a city.

14. Art. 2, § 16 of the Kansas Constitution should not be construed narrowly or technically to invalidate proper and needful legislation. Generally, where the subject of the legislation is germane to other provisions in the legislation, the legislation is not objectionable as containing more than one subject. Art. 2, § 16 is violated only where an act of legislation embraces two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other.

15. The Kansas Constitution contains no inhibition upon the power of the legislature to provide, as it may deem best, the method for the appointment of officers whose election or appointment is not otherwise provided for. On the other hand, the constitution expressly declares that all officers whose election or appointment is not otherwise provided for shall be chosen or appointed as may be prescribed by law. Kan. Const. art. 15, § 1. The constitution has placed in the legislature the power to regulate the mode of appointing officers not otherwise provided for.

16. Whether this court may sever an unconstitutional provision from a statute and leave the remainder in force and effect depends on the intent of the legislature. If from examination of a statute it can be said that the act would have been passed without the objectionable portion and if the statute would operate effectively to carry out the intent of the legislature with such portion stricken, the remainder of the law will stand as valid. Whether the legislature had provided for a severability clause is of no importance. This court will assume severability if the unconstitutional part can be severed without doing violence to legislative intent.

Nick A. Tomasic, District Attorney, and Thomas M. Martin and Michael P. Howe, of Lewis, Rice & Fingersh, L.C., Kansas City, MO, argued the cause and were on the brief, for relator.

Harold T. Walker, Chief Counsel, of Unified Government of Wyandotte County/Kansas City, argued the cause, and N. Cason Boudreau, Deputy City Attorney, and Michael M. Schultz and Daniel B. Denk, of McAnany, Van Cleave & Phillips, P.A., Kansas City, and Kathryn Pruessner Peters and Norman E. Gaar, of McDowell, Rice, Smith & Gaar, Overland Park, were with him on the brief, for respondent.

Christopher K. McKenzie and Donald L. Moler, Jr., Topeka, were on the brief, for amicus curiae League of Kansas Municipalities.

ABBOTT, Justice:

This is an original action in quo warranto. The action was filed by Wyandotte County District Attorney Nick Tomasic seeking a ruling on the constitutionality of the Consolidation Act, K.S.A.1997 Supp. 12-340 et seq., which authorized a procedure whereby the voters of Wyandotte County (County) could adopt a consolidated government for County and Kansas City, Kansas (City).

The parties filed a stipulation of facts. By way of background, we include a portion of the stipulation of facts.

"The County is comprised of 155.7 square miles and has a 1996 estimated population of 153,427. The County is the smallest county in Kansas. The County has the fourth largest population in the State of Kansas among Kansas counties.

"The County includes four (4) incorporated municipalities and a small unincorporated area of 2.7 square miles, the Loring area, which is south of Bonner Springs. The four incorporated municipalities are the City, Edwardsville, Bonner Springs and Lake Quivira.

"The City is a city of the first class. It is comprised of 127.85 [square] miles, and has a 1996 estimated population of 142,654. The City is the second largest city in Kansas in terms of population and the largest city in Kansas in land area.

"Approximately 82.1% of the County is within the geographic boundaries of the City.

"The City is the county seat of the County. The County Courthouse and most of the county officials are located in the City.

"Bonner Springs is a second class city. Its boundaries extend over Wyandotte and Johnson Counties. Its 1996 estimated population is 6,541, with 6,538 persons residing in Wyandotte County. Bonner Spring's area covers 15.8 square miles, with 15.5 square miles in Wyandotte County.

"Edwardsville is a third class city. Its 1996 estimated population is 4,097. It covers 9.2 square miles.

"Lake Quivira is a third class city. Its boundaries extend over Wyandotte and Johnson Counties. Its 1996 estimated population is 1,013, of which approximately 40 live in Wyandotte County. It covers 1.3 square miles, with .3 square miles in Wyandotte County.

"The unincorporated Loring area of the County covers 2.7 square miles. Its 1996 estimated population is 95.

....

"In 1991, the City annexed 17 square miles of unincorporated land in the County, commonly known as the Piper area. See In Re Petition of the City of Kansas City for Annexation of Land, 253 Kan. 402, 856 P.2d 144 (1993).

....

"As a result of the 1991 annexation, there were mergers of organizations and consolidation of functions. The County Sheriff's deputy patrol, the County road and bridge repair program and the County zoning function were eliminated. The Joint City-County Board of Health was eliminated and all responsibilities and facilities were transferred to the County. The City transferred all jail responsibilities to the County, by interlocal agreement. Solid waste planning vested totally in the City by interlocal agreement for county-wide purposes. The City acquired all remaining water districts in the County. A County sewer district was eliminated.

....

"Pursuant to the Consolidation Act, on or about May 15, 1996, Governor William Graves appointed five (5) private citizens to form the Consolidation Study Commission of Kansas City, Kansas and Wyandotte County (the 'Commission'). The Commission members who were appointed were Rev. Robert L. Baynham, Chairman, Gary D. Grable, Vice-Chairman, Dr. Thomas R. Burke, Member, Aileen C. Eidson, Member, and Richard A. Ruiz, Member. The members were not elected officials or employees of any of the governmental entities in the County.

"The Consolidation Act charged the Commission with the responsibility to study the consolidation of the City and the County governments, or the consolidation of certain offices, functions, services and operations thereof, and to prepare and adopt a plan addressing such consolidation of governments or offices, functions, services and operations, as deemed appropriate.

"From May through October, 1996, the Commission held public hearings and meetings for the purposes of providing and receiving information about the consolidation of governmental services. Thirty-five (35) public meetings were held at which the Commission solicited opinions and testimony from the staff and elected officials of the two governments...