The City of Mankato v. The Board of County Commissioners of The County of Jewell

• Decision Date: 07 April 1928
• Docket Number: 27,959
• Citation: 125 Kan. 674,266 P. 96
• Parties: THE CITY OF MANKATO, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF JEWELL, and JOHN W. GARDNER, R. W. DOLE and C. A. WILKIN, as the State Highway Commission, Appellants
• Court: Kansas Supreme Court

266 P. 96

125 Kan. 674

THE CITY OF MANKATO, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF JEWELL, and JOHN W. GARDNER, R. W. DOLE and C. A. WILKIN, as the State Highway Commission, Appellants

No. 27,959

Supreme Court of Kansas

April 7, 1928

Decided January, 1928

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Right to Maintain Suit--Location of State Highway System. A city which is a county seat has no capacity to maintain an action against the state highway commission and the board of county commissioners with respect to the location of highways through the county which form a part of the state highway system.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, and L. E. Weltmer, county attorney, for the appellants.

D. F Stanley and R. B. Turner, both of Mankato, for the appellee; R. W. Turner, of Mankato, of counsel.

OPINION

Harvey, J.

This action is brought under our declaratory judgment statute (R. S. 60-3127 et seq.) seeking a construction of section 2 of chapter 214 of the Laws of 1925. The section of the statute sought to be construed reads as follows:

"That the state highway commission, in conjunction with the boards of county commissioners, shall designate in every county in the state certain highways, the total mileage of which shall not exceed 8,690 miles, and the total mileage of which in each county shall not be less than the sum of the north to south and east to west diameters of the counties, and which shall connect the county seats and principal cities and market centers. Which highways shall constitute the state highway system. Said state highway system shall include all roads heretofore approved by the state highway department and the federal government under the federal highway act. The system of roads thus designated shall be constructed, reconstructed, improved and maintained by the boards of county commissioners of the several counties, subject to the supervision of the state highway commission, from funds hereinafter provided." (Laws 1925, ch. 214, § 2.)

It is alleged that defendants have designated an east and west highway through Jewell county and through Mankato, the county seat, as highway No. 36, and have also designated a road from the south boundary of the county north through Jewell City, and thence in a north and westerly direction, connecting with highway No. 36 a short distance east of the city of Mankato, and that no state highway has been designated north from Mankato through the county. It is further alleged that there is a road directly north from Mankato seven miles, thence in a north and easterly direction to the north line of the county, which had previously been approved by the state highway department and by the federal government under the federal highway act, and that the same, by the operation of the statute above quoted, became a part of the state highway system in Jewell county; that instead of designating such highway as a part of the state highway system defendants proposed to designate a road commencing five miles east of Mankato on highway No. 36, running thence north to the north boundary of the county, as a part of the state highway system. The real purpose of the action is to prevent defendants from designating the highway last mentioned as a part of the state highway system, and to require them to designate the road running directly north from Mankato seven miles, thence north and east to the county line. Plaintiff further alleged that the provision for the construction of state highways is in large part made from special motor vehicle license taxes and from the tax on motor fuel, and in the preceding year such taxes in excess of $ 11,000 were collected in the plaintiff city for the purpose of constructing highways.

Separate demurrers to the petition raising the question, among others, that plaintiff had no legal capacity to maintain this action, were filed by the board of county commissioners and state highway commission and were overruled. Defendants then answered denying, among other things, that there was an actual controversy within the meaning of the declaratory judgment statute with respect to the statute in question, and further raising the question of plaintiff's legal capacity to maintain this action. A trial resulted in a judgment in accordance with plaintiff's contentions. Defendants have appealed.

The first question presented for our consideration, and the only one we shall find it necessary to discuss, is that of plaintiff's legal capacity to maintain the action.

Cities in this state are municipal corporations created primarily for the purpose of local government. (Art. 12, § 5, Const.; R. S. 12-101.) They have only such power and authority as is specifically given them by the legislature, or those that are necessarily implied in the powers specifically given. (City of Leavenworth v. Rankin, 2 Kan. 357; Beach v. Leahy, 11 Kan. 23; In re Pryor, Petitioner, 55 Kan. 724, 728, 41 P. 958; State v. Downs, 60 Kan. 788, 792, 57 P. 962.) They may sue and be sued as individuals may, with respect to their property or in respect to authority specifically granted to them. (Stevenson v. Shawnee County, 98 Kan. 671, 677, 159 P. 5.) But such cities are not the supervisors of the governmental business of other subdivisions of the state such as counties, or of boards or commissions created by the legislature for carrying on the business of the state, such as the state highway commission. A somewhat similar question with respect to the right of a drainage district to maintain an action against the city was raised in Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 372, 239 P. 760, where the purposely refrained from considering or passing on the question.

In Collingwood v. Schmidt, 125 Kan. 81, 262 P. 556, it was held:

"An action to compel public officials to perform their duty should ordinarily be brought in the name of the state on the relation of the attorney-general or county attorney. A private citizen who has no interest to be protected or rights to be enforced by the determination of the question sought to be litigated, which are personal or specific to him as distinct from other citizens, cannot maintain such action." (Citing Weigand v. City of Wichita, 111 Kan. 455, 207 P. 651, where many other cases are cited.)

But plaintiff contends that the provision...