The City of Hutchinson v. Leimbach

• Decision Date: 12 December 1903
• Docket Number: 13,315
• Citation: 68 Kan. 37,74 P. 598
• Parties: THE CITY OF HUTCHINSON v. ALICE M. LEIMBACH et al
• Court: Kansas Supreme Court

74 P. 598

68 Kan. 37

THE CITY OF HUTCHINSON v. ALICE M. LEIMBACH et al

No. 13,315

Supreme Court of Kansas

December 12, 1903

Decided July, 1903.

Error from Reno district court; M. P. SIMPSON, judge.

Judgment reversed and cause remanded for further proceedings.

SYLLABUS

SYLLABUS BY THE COURT.

CONSTITUTIONAL LAW -- Change in Corporate Limits -- Act of 1897 Invalid. That part of chapter 267 of the Laws of 1897 (Gen. Stat. 1901, §§ 7894-7903) which provides that whenever persons desiring to remove any tract of land from the corporate limits of a city shall petition for such removal it shall be made, provided that after published notice the district court shall find that no public or private right will be injured or endangered, all considerations as to any right of the city or its creditors to look to the property for taxes being excluded, is unconstitutional, in that it attempts to confer a legislative power upon such petitioners.

A. C Malloy, for plaintiff in error.

W. G. Fairchild, for defendants in error.

MASON J. SMITH, CUNNINGHAM, GREENE, BURCH, JJ., concurring. JOHNSTON, C. J., dissenting.

OPINION

MASON, J.:

This was an action brought to enjoin the collection of city taxes upon real property which at one time was within the city of Hutchinson, but which the owners claim has been legally taken out of the corporation. The district court granted the injunction and the city brings the matter here for review. The proceedings for placing the land outside the corporate limits were had under chapter 267 of the Laws of 1897 (Gen. Stat. 1901, §§ 7894-7903), and the contention of the city is that this statute is void because it attempts an unconstitutional delegation of legislative authority. Defendants in error claim that the statute has been upheld repeatedly by this court against this objection. This, in a sense, is true, but a review of the authorities will discover that the case presents a question to which heretofore the attention of the court has not been directed specifically.

The first case directly involving any feature of the question was City of Emporia v. Smith, 42 Kan. 433, 22 P. 616, which arose under section 1 of chapter 69, Laws of 1886 (Gen. Stat. 1901, § 1052), but in which it was merely decided that the power given to the legislature by section 21 of article 2 of the Kansas constitution, to confer on the tribunals transacting county business powers of local legislation and administration, is not exclusive, but that such powers with reference to the change of city boundaries might be conferred on the mayor and councilmen.

The next case was Callen v. Junction City, 43 Kan. 627, 23 P. 652, 7 L. R. A. 736. This arose under the same statute, which reads as follows:

"That whenever the city council of any city of the second class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of said city, present a petition to the judge of the district court of the county in which such city is situated, setting forth by metes and bounds the territory sought to be added, and asking said judge to make a finding as to the advisability of adding said territory to said city. Upon such petition being presented to said judge, with proof that notice of the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, he shall proceed to hear testimony as to the advisability of making such addition; and upon such hearing, if he shall be satisfied that the adding of such territory to the city will be to its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be so added, he shall so find; and thereupon the city council of said city may add such territory to said city by an ordinance providing for the same; providing, that no such proceeding shall be necessary where the territory sought to be added is subdivided into lots and blocks, but in such cases the city council of such city shall have power to add such adjacent territory to said city by ordinance."

It was urged that the statute was void inasmuch as it attempted to confer legislative powers upon a judicial officer. The opinion reviewed at length the conflicting authorities bearing on the question and upheld the statute on the theory that the legislative power to determine, as a matter of policy, whether a tract of land should be added to the city was conferred by it upon the mayor and council, under the restrictions that it should not be exercised in any case where it would not be to the interest of the city, or where a manifest injury would be caused to property-owners, and that whether these conditions existed was a judicial question, properly left to the determination of the district court. The principle is that while the court may be said to decide whether a change ought to be made the council determines whether it shall be made. The legislative fiat proceeds from the council and not from the court.

The next cases were Huling v. The City of Topeka, 44 Kan. 577, 24 P. 1110, and Hurla v. Kansas City, 46 id. 738, 27 P. 143, arising under section 1 of chapter 99, Laws of 1887 (Gen. Stat. 1901, § 724), which is similar to the section quoted, but applies to cities of the first class, and the action of the court is made to follow, instead of precede, that of the council. The part directly in point reads as follows:

"Thereupon said court shall determine whether said publication has been made as herein required, and shall then consider said ordinance, and by its judgment either approve, disapprove or modify the same, first hearing all objections, if any, and proofs, if any, offered by said city or persons affected by said ordinance. Should said ordinance be approved or modified by said court, then the limits or area of said city shall be enlarged or extended as therein designated, from the date of such approval or modification; but should it be disapproved entirely, then the limits or area of the city shall remain unaffected by said proceedings; but should the same be approved entirely, or modified and approved, the judgment of said court shall stand, and the limits of such city shall be extended as is in said judgment specified."

In each case it was held, following the decision in Callen v. Junction City, supra, that the power conferred on the court was judicial, not legislative.

Among other cases which also follow the Junction City case are City of Emporia v. Randolph 56 Kan. 117, 42 P. 376, and Eskridge v. Emporia, 63 id. 368, 65 P. 694, although in the former case Mr. Justice Allen dissented, and Chief Justice Martin, who wrote the opinion, stated that if the question had been a new one he would have taken the other view.

It should be observed that all of these cases are based upon statutes authorizing changes of boundary to be made by the mayor and council, subject to certain findings made by the court. But the statute involved in the present action is very different. So far as it is here material it reads as follows (Gen. Stat. 1901, §§ 7896, 7897, 7899, 7900):

"§ 7896. Whenever it shall be desired to vacate any block, lot park, reservation, street or alley, or any part of such block, park, reservation, street or alley, in any improved town site, or exclude the same, or any unplatted farm land from the boundaries of any city of the first, second, or third classes, the person, persons or corporation so desiring shall give notice by advertisement for four consecutive weeks in a weekly newspaper of general circulation in said town and published in the county in which said lots, blocks and parks are situated, that at the next regular session of the district court of the county in which such town is located a petition will be presented to the said district court praying the vacation of such block, lot, park, reservation, street, alley, or any part of such block, park, street or alley, and the exclusion of unplatted...