State v. The City of Atchison

• Decision Date: 09 May 1914
• Docket Number: 19,106
• Citation: 92 Kan. 431,140 P. 873
• Parties: THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Appellant, v. THE CITY OF ATCHISON, Appellee
• Court: Kansas Supreme Court

140 P. 873

92 Kan. 431

THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Appellant, v. THE CITY OF ATCHISON, Appellee

No. 19,106

Supreme Court of Kansas

May 9, 1914

Decided January, 1914.

Appeal from Atchison district court; WILLIAM A. JACKSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CITY ORDINANCE--Presumptions of Validity. Where an ordinance which has been regularly passed by a city council and approved by the mayor is offered in evidence, and the validity of such ordinance depends upon the existence of one or more facts at the time of the enactment thereof, the existence, and not the nonexistence, of the necessary facts to sustain the validity of the ordinance should be presumed in the absence of evidence to the contrary.

John S. Dawson, attorney-general, B. P. Waggener, of Atchison, and A. E. Crane, of Holton, for the appellant.

Walter E. Brown, and Thomas A. Moxcey, both of Atchison, for the appellee.

OPINION

SMITH, J.

This action was brought in the name of the state of Kansas, on the relation of the attorney-general, to oust the city of Atchison from exercising certain powers it had assumed to exercise in the passage of ordinance No. 3096. The ordinance purports to annex sixty-five acres of land to the city, which power it is alleged was not authorized by law but was usurped. The relief asked for, as stated by the appellant, is:

"The prayer of said petition was that the said City be required to answer all such matters; that it might be ousted forever from the exercise of said usurped corporate powers, and that its said action in the passage of said ordinance, and attempt to annex said sixty-five acres of land to the City of Atchison, as a part thereof, should be annulled and held void, and in excess of its corporate power."

The city, in its answer, admitted that it was a city of the first class, as alleged by the appellant; that it had all the powers of such a city, and that included in such powers was the power to annex to the city unplatted lands which lie within or mainly within the city, and that the 65-acre tract described in the petition was unplatted land and lies mainly within the city of Atchison. The entire boundary of the 65-acre tract is set forth, with the length in feet of the several boundary lines.

To this answer a demurrer was filed, particularly to the third paragraph describing the metes and bounds of the tract. The demurrer was overruled.

Thereupon a reply was filed which contained a general denial except as to facts previously admitted. The reply further alleged that the boundary lines of Atchison, as described in the answer, had never, previous to the passage of ordinance No. 3096, been established by any legal or valid ordinance and that said ordinance was therefore void.

The case was tried to the court without a jury. The appellant, assuming the burden of proof, introduced evidence tending to show that the 65-acre tract of land had been laid off in lots, blocks, streets and alleys in 1860, but that by proper proceedings by the board of county commissioners the tract was expunged from the record and restored to its former condition of unplatted land; also evidence tending to show that more than one-half of the boundary of the 65-acre tract did not consist of the boundary lines of the city prior to the passage of ordinance No. 3096, except as the same were attempted to be changed by ordinance No. 3074 and ordinance No. 3096. To this evidence the city interposed a demurrer, which was overruled.

The appellant produced in evidence ordinance No. 3096. Thereupon the appellee offered in evidence ordinance No. 3074, to which objection was made that it was incompetent and immaterial and because the ordinance itself showed that it was not passed in pursuance of any law of the state. No foundation was laid for the introduction of the ordinance, nor was there any evidence tending to show any invalidity therein. This objection was overruled and the ordinance read in evidence. Appellee thereupon introduced as a witness one Altman, who testified that he was city engineer of the city of Atchison, and produced a plat which he testified he had prepared from descriptions he got at the courthouse. Whereupon the following questions were asked and answers returned:

"Q. What, if any, ordinance did you use in defining the boundaries of the city? A. The ordinance prepared before 3096.

"Q. 3074? A. Yes, sir.

"Q. This plat shows the boundaries of the city drawn by you from that ordinance? A. Yes."

There was no evidence showing the boundaries of the city except ordinances Nos. 3074 and 3096, and the plat made therefrom by the city engineer. Appellant thereupon filed a motion for judgment in its favor, which was denied.

In 2 Dillon, Municipal Corporations, 5th edition, section 649, it is said:

"It will be presumed that an ordinance is valid and the burden of proving its invalidity is on the person asserting it."

The ordinance could only be valid if one of the conditions prescribed by section 872 of the General Statutes of 1909 existed;...