State v. The Kansas State Highway Commission

• Decision Date: 06 June 1931
• Docket Number: 30,110
• Citation: 299 P. 955,133 Kan. 357
• Parties: THE STATE OF KANSAS, ex rel. J. G. LOGAN, County Attorney, ELIZABETH HUPP, W. C. PEARCE and C. L. HUPP, Appellants, v. THE KANSAS STATE HIGHWAY COMMISSION, Appellee
• Court: Kansas Supreme Court

299 P. 955

133 Kan. 357

THE STATE OF KANSAS, ex rel. J. G. LOGAN, County Attorney, ELIZABETH HUPP, W. C. PEARCE and C. L. HUPP, Appellants, v. THE KANSAS STATE HIGHWAY COMMISSION, Appellee

No. 30,110

Supreme Court of Kansas

June 6, 1931

Decided January, 1931.

Appeal from Shawnee district court, division No. 1; GEORGE A. KLINE judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COUNTY ATTORNEYS--Authority in Another County. The power and authority given the county attorney by R. S. 19-702 to use the name of the state, where the state or his county is interested, does not cover or extend to matters or things being done or attempted to be done by the state highway commission in another county and practically affecting the people of the other county only, even if proper service can be had on the commission in his county.

2. HIGHWAYS--Alterations for Public Safety--Pleading. Allegations of a petition that the proposed change in a highway is substantial and is not being made in the interest of public safety must be considered in conjunction with the allegations giving the description of the road and of the proposed changes in its location, and from all the allegations it should be determined whether the proposed change is substantial and whether or not the change is in the interest of public safety.

3. SAME--Alterations--Elimination of Right-angle Turns. A change in a highway which in fact eliminates right-angle turns and substitutes obtuse-angle turns for other right-angle turns is naturally and reasonably a change in the interest of public safety.

4. SAME--Alterations--What Constitutes Substantial Change. This court is unable to declare a change in a country highway which consists of running diagonally through three quarter sections instead of running along one side of each tract, and running on the north side of another quarter section instead of running on the east and south sides thereof, is a substantial change.

J. G. Logan, county attorney, J. N. Tincher, Don Shaffer, both of Hutchinson, and Randal C. Harvey, of Topeka, for the appellants.

Wint Smith, assistant attorney-general, Fred S. Jackson, James E. Smith, both of Topeka, Ezra Branine and Alden E. Branine, both of Newton, for the appellee.

Hutchison J. Harvey, J., not sitting.

OPINION

HUTCHISON, J.:

This is an action against the state highway commission, brought in the district court of Shawnee county by the state on relation of the county attorney of Shawnee county and also by three individual residents of and property owners in Harvey county, to enjoin and restrain the commission from materially changing the route of a designated state highway where the changes are not required for public safety. The trial court sustained a demurrer to the petition, and plaintiffs appeal.

Four questions are involved as to the sufficiency of the petition: (1) Whether the county attorney of Shawnee county has the power to commence an action in the name of the state in the district court of Shawnee county, to enjoin illegal acts of the highway commission; (2) whether property owners whose property is proposed to be taken by an illegal change in the highway can maintain such an action; (3) whether the district court of Shawnee county has jurisdiction to entertain a suit to enjoin illegal acts of the highway commission relating to a road in another county; and (4) whether the petition states facts sufficient to constitute a cause of action and entitle the plaintiffs to injunctive relief?

The first and third points will be considered together, and as to the jurisdiction of the district court of Shawnee county to entertain such an action against the Kansas state highway commission, it can be readily answered in the affirmative on the strength of the provisions of chapter 225 of the Laws of 1929, creating the commission, section 2 of which specifically states the commission shall maintain its office in Topeka, Shawnee county, Kansas. This jurisdiction in the district court of the county where the commission holds its meetings, has its office, and where service can properly be had upon it will, when the action is commenced by the proper party or parties, extend to acts of the commission relating to roads entirely within the boundaries of another county. ( Clay v. Hoysradt, 8 Kan. 74; Fay v. Edmiston, 28 Kan. 105; and State, ex rel., v. Flannelly, 96 Kan. 372, 152 P. 22.)

In the last case above cited the action was brought by the state on relation of the attorney-general, in the district court of Montgomery county, against certain gas companies doing business in that county and the receivers of one of the gas companies, by leave of court, made the public utilities commission of the state of Kansas with offices in Topeka, Shawnee county, a party defendant, and sought to enjoin the commission from enforcing one of its orders as to rates to be charged for gas in Montgomery county, and it was held that the acts of the commission of which complaint was made were performed by it in Shawnee county where its offices were, and the district court of Montgomery county did not have jurisdiction of the commission.

Appellants cite the case of Hornaday v. State, 62 Kan. 822, 62 P. 329, in support of their view of the capacity of the county attorney of Shawnee county to bring the action in the name of the state concerning the proposed change in a certain highway lying wholly within the boundaries of Harvey county. That was an action brought in the district court of Clay county in the name of the county attorney of Clay county against the board of trustees of the asylum for the insane to enjoin the board from locating the asylum at Parsons, and service was had upon one member of the board in Clay county. The power of the county attorney to institute the action was upheld on the ground that Clay county was interested in the matter of the location of the asylum. It is argued by appellants that the people of Shawnee county will travel upon the highways of Harvey county and they in common with all taxpayers of the state pay taxes used in part to maintain the highways in Harvey county and therefore the county of Shawnee is interested, and the county attorney should in their behalf endeavor to stop the making of the proposed change.

There is very little similarity in the facts in these cases. The asylum board was about to locate a site for a state asylum and expend $ 100,000 appropriated for that purpose, which would be followed by vast expenditure of funds for buildings and equipment. The board was charged with the duty of selecting a healthful site within a certain prescribed distance of an incorporated city. There existed in the case an uncertainty as to the extent to which the board could go either in contracting for the site or instituting condemnation proceedings. The taxpayers throughout the state were greatly interested in having such an institution located at a suitable place, especially when it involved the expenditure of such a large sum of their money, and that the site be condemned rather than purchased by contract, if it might cost more by contract. The citizens of Shawnee county have no such interest in the proposed change in the established highway in Harvey county.

The authority of the county attorney to maintain actions in the name of the state is embodied in R. S. 19-702, which is as follows:

"It shall be the duty of the county attorney to appear in the several courts of their respective counties and prosecute or defend on behalf of the people all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested."

Shawnee county was not a party to this action so the authority of the county attorney is limited to the fact of the state or his county being "interested." We have no hesitancy in concluding that the travel over the road in Harvey county by citizens of Shawnee county and the contribution in the way of taxes, some of which may be used by the state in the maintenance of the Harvey county road, is not such an interest as is contemplated by this statute.

An examination of the case of State v. Lawrence, 80 Kan. 707, 103 P. 839, cited by appellants, shows it was brought by the county attorney in the county where the...