State v. Kansas City

Decision Date07 January 1893
Citation31 P. 1100,50 Kan. 508
PartiesTHE STATE OF KANSAS, on the relation of John N. Ives, Attorney General, v. THE CITY OF KANSAS CITY, KANSAS, et al
CourtKansas Supreme Court
Original Proceeding in Quo Warranto.

ACTION to dissolve the consolidation of the cities of Wyandotte Kansas City, and Armourdale; heard on answer and demurrer to the answer. Demurrer overruled, and judgment for the defendants. All the material facts are stated in the opinion herein, handed down January 7, 1893.

Demurrer overruled.

John N Ives, attorney general, for plaintiff; Borsford & Williams,. G. F. Bailingall, Thomas A. Pollock, and Gleed & Gleed, of Counsel:

The act entitled "An act to provide for the consolidation of cities," approved February 11, 1886, and the act supplemental, thereto and amendatory thereof, approved February 18, 1886, under which the consolidation of the cities of Wyandotte, Kansas City, and Armourdale, Wyandotte county, Kansas, was attempted to be made into one city of the first class, under the name of Kansas City, were and are unconstitutional and void, and the consolidation of said cities illegal and invalid, because--

1. Said act of February 11, 1886, is a special law conferring corporate powers, and is in violation of § 1, article 12, of the constitution of the state of Kansas.

2. Said act contravenes § 5 of the same article of the state constitution, which provides that "provision shall be made by general law for the organization of dries, towns, and villages." City of Topeka v. Gilleft, 82 Kan. 434; Gray v. Crockett, 30 id. 143; Atchison v. Bartholow, 4 id. 124; Van Ripper v. Parsons, 40 N.J.L. 123; The State v. Hammer, 42 id. 435; The State v. Herrmann, 75 Mo. 340; The State v Mitchell, 31 Ohio St. 592; The People v. Haselwood, 116 Ill. 319; Commonwealth v. Patton, 88 Pa. 258; Nichols v. Walters, 37 Minn. 264; Suth. Stat. Constr., §§ 117, 128, 129; Dill. Mun. Corp., §§ 45, 46.

3. Said act is also void because the subject of the act is not clearly expressed in its title, within the meaning of § 16 of article 2 of the consiitution of the state, and the act contains more than one subject, in violation of said § 16 of article 2 of the constitution.

(a) The title does not indicate clearly the scope of the act. It is too general, is deceptive and misleading, and renders the whole act void. Railway Co.'s Appeal, 81 Pa. 91; Town v. Sainer, 59 Iowa 26; City of Eureka v. Davis, 21 Kan. 580; The State v. Barrett, 27 id. 213.

(b) The provisions of said chapter 63 for the regulation and government of cities after consolidation, and especially the provisions of § 14 of said chapter, relative to grading of streets, avenues, and alleys, and of § 5, authorizing the mayor and council to change the name of any city after consolidation under said act, are not clearly expressed in the title of the act. Simpson v. Kansas City, 46 Kan. 438, 452; Comm'rs of Sedgwick Co. v. Bailey, 13 id. 610; The State v. Barrett, 27 id. 213; The State, ex rel., v. Benefit Assn., 23 id. 499; Shepherd v. Helmets, 23 id. 505; The State v. Comm'rs of Haskell Co., 40 id. 65.

(c) The provisions of said chapter 63 for the government and regulation of cities after consolidation are inseparably connected in substance with the remainder of the act, and their unconstitutionality renders the whole act void. C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453, and cases cited.

(d) The act contains two subjects, and is therefore void. Comm'rs of Sedgwick Co. v. Bailey, 13 Kan. 610; The State v. Barrett, 27 id. 213; Mo. Pac. Rly. Co. v. City of Wyandotte, 44 id. 32; The State, ex rel., v. Comm'rs of Haskell Co., 40 id. 65; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 id. 453.

4. Said chapter 63 does not have a uniform operation throughout the state, and contravenes § 17, article 2, of the constitution of the state.

(a) The exception contained in the last clause of § 1 of said chapter 63, that "such cities shall be consolidated and become one city, and be governed and regulated by the laws relating to cities of the first class, except as to the matters provided for in this act," violates said § 17 of article 2 of the constitution, and is void. Simpson v. Kansas City, 46 Kan. 453; Darling v. Rodgers, 7 id. 599; Robinson v. Perry, 17 id. 248; Gray v. Crockett, 30 id. 138.

(b) The unconstitutionaltry of the excepting clause above stated, and of the provisions introduced into the act under it, especially § 14 and the proviso of § 5, renders the whole act void. Commonwealth v. Potts, 79 Pa. 164; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453.

5. The consolidation of the cities of Wyandotte; Kansas City and Armourdale was unconstitutional, illegal, and void, because, at the time said consolidation was made, the city of Armourdale was separated from the city of Wyandotte and Kansas City by an intervening strip of land, not included within the limits of either of said three original cities, or of said consolidated city, and which was a part of the municipal township of Wyandotte. Constitution, art. 12, § 5; Smith v. Sherry, 50 Wis. 210; Union Pacific Rly. Co. v. Kansas City, 42 Kan. 497; Prouty v. Stover, 11 id. 235; In re Holcomb, 21 id. 635; Beach v. Leahy, 11 id. 23.

L. C. True, city attorney, and Winfield Freeman, city counselor, for defendants; John C. Foster, McGrew & Watson, and Silas Porter, of Counsel:

We do not dissent from the legal proposition stated, that a special act conferring corporate powers, in this state, or in other states with like constitutional provisions, cannot be upheld. Our contention is, that the act in question is not special. If it is, then we agree with our opponents that it is unconstitutional. As it does not appear on the face of the answer that the act pleaded is special, the demurrer must be overruled. Gen. Stat. of 1889, P 4172; Mayberry v. Kelly, 1 Kan. 116; Nash, Pl. & Pr. (4th ed.), p. 147.

That the law is special in its application (if that is a fact), cannot be considered at this time. Nor is the rule changed by the fact that the court may take judicial notice of everything which may affect the validity of the statute. The time to take judicial notice of facts is when the case is for trial on the facts, and not on issues of law.

But if the court should think it proper to consider on demurrer such facts as it may take judicial notice of, then we contend that the act in question is not special legislation, under the rules laid down by this court, as follows: "It is not necessary that a law should operate upon all cities of the state to be constitutional. If it is general and uniform throughout the state, operating upon all of a certain class (as this law does), or upon all who are brought within the relations and circumstances provided in the act (as this law does) it is not obnoxious to the limitation against special legislation." The State v. Hunter, 38 Kan. 590. See, also, City of Topeka v. Gillett, 32 Kan. 436; Van Ripper v. Parsons, 40 N.J.L. 123.

The subject of the act in question is clearly expressed in its title. Suth. Stat. Const., § 88; Dill. Mun. Corp., § 28; People v. Mahoney, 13 Mich. 494; Davis v. The State, 61 Am. Dec. (Md.) 331, and notes, 338; Insurance Co. v. Mayor, 3 N.Y. 239; The State v. County Judge, 2 Iowa 280; Weyand v. Stover, 35 Kan. 551; In re Wood, 34 id. 649; John v. Reaser, 31 id. 406; The State v. Barrett, 27 id. 213, 218.

Does the act contain more than one subject? The subject being the consolidation of cities, and the details not being required to be expressed in the title, we have to look to the body of the act for them. If we there find some matter provided for, not expressed in or germane to the title, and in no way connected with the subject of the act, such matter must be expunged, but the remainder of the act may stand. Cooley, Const. Lim., p. 177; Turner v. Comm'rs of Woodson Co., 27 Kan. 314; Berry v. Railroad Co., 20 Am. Rep. (Md.) 69; Lottery Co. v. Richoux, 8 id. 602; Gayle v. County Court, 83 Ky. 161.

The parts of the act complained of, to wit, the provision for government after consolidation, the provision for change of name, the provision for grading streets, are, we think, clearly germane to the title--"Consolidation of cities." If so, they are properly within the act; if not, they are unconstitutional and void. The name given the city by the governor was for the provisional government, just to answer until the mayor and council might determine what name would be preferable. This was clearly authorized by the decision of this court in the case of The State, ex. rel., v. Comm'rs of Haskell Co., 40 Kan. 65.

The part of the act with reference to consolidation is complete and perfect of itself, and can stand alone. It is in no way dependent upon the grading, or the government, or the change of name. See Smith v. Mayor, etc., 45 N.W. 964. "Constitutional and unconstitutional provisions may even be contained in the same section of law, and yet be perfectly distinct and separable, so that the former may stand, though the latter fall." 3 Am. & Eng. Encyc. of Law, p. 677, and cases there cited. "Part of the law may be held good and part bad, if it is separable." C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 353. See, also, Nichols v. Walter, 37 Minn. 270; The State v. Ellet, 21 Am. Rep. 782, and numerous cases cited in notes.

Counsel for plaintiff say that the consolidation of Kansas City Armourdale and Wyandotte was unconstitutional, illegal, and void, because there was an intervening strip of land (750 feet wide) not included in either of the original cities or the consolidated city. This is not a correct statement under the pleadings, or in fact; and if it were, it could have no effect in this case. The legislature may shape...

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