State v. The Board of City Commissioners of The City of Hutchinson

• Decision Date: 14 November 1914
• Docket Number: 19,592
• Citation: 93 Kan. 405,144 P. 241
• Parties: THE STATE OF KANSAS, ex rel. E. T. FOOTE, as County Attorney, etc., et al., Appellees, v. THE BOARD OF CITY COMMISSIONERS OF THE CITY OF HUTCHINSON et al., Appellants
• Court: Kansas Supreme Court

144 P. 241

93 Kan. 405

THE STATE OF KANSAS, ex rel. E. T. FOOTE, as County Attorney, etc., et al., Appellees, v. THE BOARD OF CITY COMMISSIONERS OF THE CITY OF HUTCHINSON et al., Appellants

No. 19,592

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Reno district court; FRANK F. PRIGG, judge.

Allowance peremptory writ mandamus affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES OF THE FIRST CLASS--Initiative and Referendum Law Constitutional and Valid. Section 1240 of the General Statutes of 1909, known as the initiative and referendum law, is not violative of section 21 of article 2 of the constitution of this state although it confers legislative powers upon boards of city commissioners, and, in turn, upon the electors in cities of the first class; neither is it violative of section 2 of the bill of rights, as it grants no special privileges or immunities.

2. SAME. The initiative and referendum provisions of section 1240 of the General Statutes of 1909 are not repugnant to section 4 of article 4 of the constitution of the United States, which guarantees to every state a republican form of government.

Walter F. Jones, Frank L. Martin, and Van M. Martin, all of Hutchinson, for the appellants.

A. C. Malloy, and C. M. Williams, both of Hutchinson, for the appellees.

OPINION

SMITH, J.

This action was brought by the state on the relation of the county attorney of Reno county, and one John Beck.

The petition, after alleging the qualifications of the relator, alleged that the city of Hutchinson is in Reno county and is a city of the first class; that at and for some years prior to the bringing of the action it had been legally acting under the commission form of government, and the names of the commissioners and mayor were therein set forth. The petition further alleged that prior to the filing thereof, a petition, signed by qualified voters of the city, more than twenty-five per cent in number, of the total vote cast for all candidates for mayor at the last preceding general election, was presented to the defendant commission, which petition requested that a certain ordinance, a copy of which was attached thereto, should either be passed by such commission, without alteration, or be submitted without alteration by the commission to a vote of the qualified electors of the city within the time provided by law. It is further alleged that after the filing and presentation of such petition to the respondents, the city clerk attached thereto his certificate of the sufficiency thereof; a copy of which certificate was attached to the petition.

It was further alleged that it thereupon became the duty of the board of commissioners to pass said ordinance as requested, without alteration and within twenty days thereafter, or to submit such ordinance to a vote of the qualified electors of the city at an election to be called forthwith after the attaching of such certificate of sufficiency; that notwithstanding such duty the board of commissioners, by formal action and by a unanimous vote of all the commissioners, refused to pass such ordinance, without alteration, and in the same manner refused to submit such ordinance to a vote of the electors of the city or to call an election for that purpose. Further, it was alleged in the petition filed in the district court that the petition presented to the commission was legally sufficient under the laws of the state.

The prayer was that mandamus issue out of the court directing such board of commissioners, in substance, to pass without alteration and publish such ordinance, or that in the event they refused so to do, that such board of commissioners and each member thereof submit the ordinance to a vote of the qualified electors of the city at an election to be called, as prayed for, for that purpose and to be held within thirty days from the date of the calling thereof. Further, that a large number of citizens, taxpayers and electors of the city are interested in the relief sought and are without adequate remedy in the usual and ordinary forms of action and that the writ of mandamus is the only effective writ in the premises. The petition was presented to the judge of the district court, and an alternative writ of mandamus was allowed, as prayed for, ordering and enjoining the respondents to pass the ordinance contained in the petition to the commission, without alteration, or that the board call an election and submit the ordinance to a vote of the qualified electors of the city; or that, failing in this, the board and the members thereof should appear and show cause on a certain day why said act or acts should not be performed.

The respondents made a return of the alternative writ, in substance, as follows: They admit the membership of the board of city commissioners as alleged; the presentation of the petition duly signed as alleged, and that immediately upon the consideration of the petition and the ordinance they unanimously decided not to adopt or publish the ordinance and refused to submit it to a vote of the electors as prayed for. Such refusal was based upon the following reasons: (1) that the proposed ordinance is in contravention of section 4 of article 4 of the constitution of the United States, and contrary to the laws of the state of Kansas in that it violates section 2758 of the General Statutes of 1909; (2) that it is partial and unfair and makes unwarranted discrimination in favor of John Beck, the chief petitioner and if adopted would be invalid and of no force and effect; (3) that the statute of the state under which it is proposed to submit the ordinance is in conflict with section 4 of article 4 of the constitution of the United States, which guarantees to every state a republican form of government, and to the fourteenth amendment of the federal constitution which guarantees to persons the equal protection of the laws, in that the statute denies to individuals the equal protection of the laws; (4) that such statute also violates section 5 of article 12 of the constitution of the state of Kansas, in that it attempts to confer legislative power upon the qualified electors of cities of the first class, and also violates section 1 of article 2 and section 21 of article 2 of the constitution of Kansas; (5) that the proposed ordinance, if adopted, would be null and void, partial and unfair, in that it proposes to give John Beck and his associates, who own a certain park in the city, the privilege of violating the Sunday law of the state, an especial privilege not enjoyed by other persons engaged in the same business; (6) further, that in refusing to submit the ordinance to a vote of qualified electors, they were controlled by the fact that there is no money in the city treasury which can be lawfully appropriated to the payment of the expense of the election, and in substance, that levies had already been made by the board of commissioners to the full extent and limit allowed by law and that they are prohibited by law from issuing any warrant to pay any debt or expense for which no provision had been made, when there is not sufficient money on hand to meet such payment; (7) that a vote by the people upon such...