Thompson v. Kansas City Power & Light Co.

• Decision Date: 04 March 1972
• Docket Number: No. 46336,46336
• Citation: Thompson v. Kansas City Power & Light Co., 494 P.2d 1092, 208 Kan. 869 (Kan. 1972)
• Parties: H. F. THOMPSON et al., Appellants, v. KANSAS CITY POWER AND LIGHT COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 1092

494 P.2d 1092

208 Kan. 869

H. F. THOMPSON et al., Appellants, v. KANSAS CITY POWER AND LIGHT COMPANY, a Corporation, Appellee.

No. 46336.

Supreme Court of Kansas.

March 4, 1972.

Rehearing Denied April 12, 1972.

Syllabus by the Court

1. It is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court.

2. The record is examined and it is held: (1) The questions presented on appeal are moot; (2) moot questions cannot be revived to decision status because constitutional issues are raised; and (3) the trial court did not err in dismissing the action.

Park McGee, of Haskin, Noonan, McGee & Hinkle, Olathe, argued the cause, and George A. Lowe, of Lowe, Lowe & Lowe, Olathe, was with him on brief for appellants.

Lowell L. Smithson, of Spencer, Fane, Britt & Browne, Kansas City, Mo., and H. Thomas Payne, of Payne & Jones, Chartered, Olathe, argued the cause and were on brief for appellee.

James L. Baska, and R. Pete Smith, of Rice & Baska, Kansas City, were on brief for Johnson County Taxpayers Association, amicus curiae.

OWSLEY, Justice:

Appellants are the owners and tenants of a tract of real estate in Johnson County, Kansas. On February 10, 1969, appellee, a Missouri corporation, filed a petition in the District Court of Johnson County, Kansas, seeking to condemn a right of way across appellants' land. On February 20, 1969, appellants appeared before the district court and presented an answer and motion for more definite statement. Counsel for appellants urged to the court that the petition must be plead factually and may not be simply a notice pleading. Counsel for appellee took the position that the statutes of Kansas did not require a condemnation petition to contain allegations of specific and detailed evidentiary proof substantiating the taking. The district court found the petition to be sufficient and overruled and denied appellants' motion for more definite statement. The district court refused to allow appellants to introduce any evidence on their affirmative defenses and over appellants' objection to the procedure ruled the court must restrict its consideration only to the petition of the condemner and because the petition alleged the taking of appellants' property was necessary to the condemner's lawful corporate purposes, the petition for condemnation would be granted.

Thereafter, on March 20, 1969, appellants filed a petition for declaratory judgment against appellee. This petition alleged appellants' interest in the property, appellee's existence and institution of the condemnation proceedings, and challenged the validity of the condemnation procedure act of the State of Kansas as constituting a taking of property without due process of law and as an unconstitutional delegation of legislative and judicial functions to a private corporation.

On May 29, 1969, appellants filed and served on counsel for appellee two interrogatories. By these two iterrogatories appellants sought to ascertain the amount and the types of damage and consequences which appellee felt it would be encountering if construction of the electric power line across appellants' property would be delayed through an injunction or restraining order sought by appellants. Appellee objected to these interrogatories. The court sustained the objections based on a feeling that answers to the interrogatories would raise questions of fact inconsistent with the declaratory judgment and found that the defendants in a declaratory judgment case are not required to answer interrogatories. On June 13, 1969, appellee filed a motion to dismiss or for summary judgment.

Thereafter, on July 9, 1969, the court ruled in favor of appellee on all points.

On July 23, 1969, appellants served and filed their notice of appeal. The gist of appellants' appeal is the constitutionality of the Kansas statutes providing for eminent domain proceedings. (K.S.A. 26-501 et seq.) They charge that there is an unlawful delegation of legislative powers; that the statutes violate appellants' right to due process; that the statutes deny equal protection of the law; that the statutes give the appellee absolute title to land without payment of full compensation; and that appellants do not receive just compensation for land taken since they must pay attorneys' fees.

The constitutional requirement of due process has been considered in connection with our eminent domain statutes. We have held that our statutes do not deny due process to the landowner. (Bumm v. Colvin, 181 Kan. 630, 312 P.2d 827. We have also held that the failure of statutes to provide attorney fees for the landowner does not violate the constitutional requirement that just compensation be paid. (Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 494 P.2d 1113, this day decided.)

The constitutional issues raised by appellants are forcefully presented. However, appellee argues this project was completed on December 19, 1969, and the entire line has been in operation for over a year and by reason thereof all questions other than the value of the property taken have become moot.

We have frequently said that it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. (Diehn v. Penner, 169 Kan. 63, 216 P.2d 815; Bumm v. Colvin, supra; also see Oil Workers Unions v. Missouri, 361 U.S. 363 4 L.Ed.2d 373, 80 S.Ct. 391.) The position of this court was clearly stated in Bumm v. Colvin, supra. We said:

'The rule that when it appears by reason of changed circumstances between the commencement of an action and the trial thereof, a judgment would be unavailing as to the real issue presented, the case is moot and judicial action ceases, is not only applicable to actions seeking to enforce common-law remedies (Asendorf v. Common School District No. 102, supra; Andeel v. Woods, supra; Dick v. Drainage District No. 2, supra), but is equally applicable to actions under our declaratory judgment statute (G.S.1949, 60-3127). This is manifest by the rule itself, by the express terms of the statute, and by our decisions which hold that in order to obtain an adjudication of any question of law under the declaratory judgment act, an actual controversy must exist (Kittredge v. Boyd, 137 Kan. 241, 242, 20 P.2d 811; Klein v. Bredehoft, 147 Kan. 71, 73, 75 P.2d 232; City of Cherryvale v. Wilson, 153 Kan. 505, 509, 112 P.2d 111; State ex rel. Mitchell v. State Highway Comm., 163 Kan. 187, 182 P.2d 127), and when any legal question becomes moot, judicial action ceases (State ex rel. Jackson v. Aetna Insurance Co., 88 Kan. 9, 10, 127 P. 761; State v. Allen, 107 Kan. 407, 408, 191 P. 476; State ex rel. Mitchell v. State Highway Comm., 163 Kan. 187, 182 P.2d 127).

'The soundness of that general rule seems obvious. If, when the action was commenced, the petition presented an actual controversy between plaintiff and the City and the commissioners justiciable under the declaratory judgment statute, clearly, on November 12, 1956, that controversy did not exist because of pl...