Umbehr v. Board of County Com'rs of Wabaunsee County

Decision Date11 December 1992
Docket NumberNo. 65945,65945
Citation252 Kan. 30,843 P.2d 176
PartiesKeen A. UMBEHR, d/b/a Solid Waste Systems, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF WABAUNSEE COUNTY, Kansas, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Some actions taken by public agencies and boards are legislative or administrative while others are judicial or quasi-judicial. Legislative power is the power to make, alter, or repeal laws, or rules for the future. An action by an agency or board that looks to the future and changes existing conditions by making a new rule to be applied thereafter is legislative or administrative. An action by an agency or board that declares and enforces liabilities as they stand on present or past facts and under existing law is judicial or quasi-judicial.

2. In the absence of a statutory provision for appellate review of a legislative-type administrative decision, a district court is only vested with jurisdiction to grant relief from illegal, fraudulent, or oppressive acts of public officials and boards based upon equitable remedies such as quo warranto, mandamus, or injunction. Statements to the contrary in Syllabus p 3 of Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978), and corresponding portions of that opinion are disapproved.

3. It is generally held that a finding of illegality with regard to administrative proceedings relates to the procedural aspects of the proceedings and the determination of whether the action taken was within the authority of the agency or board.

4. A fraudulent act generally is comprised of anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another.

5. A board or agency's act is oppressive when it subjects a person to cruel or unusual hardship through misuse or abuse of authority or power or when it deprives a person of any rights, privileges, or immunities secured by our Constitution or laws.

Brenda J. Bell, of Everett, Seaton, Miller & Bell, Manhattan, argued the cause and was on the briefs, for appellant.

William L. Frost, of Morrison, Frost and Olsen, Manhattan, argued the cause and was on the brief, for appellee.

LOCKETT, Justice.

Keen A. Umbehr appealed the dismissal of his petition for declaratory judgment and injunctive relief which contested the Board of Wabaunsee County Commissioners' (Board) increase of county landfill user rates. The district court held that, although the Board's legislative action increasing the rates was unreasonable, Umbehr failed to timely perfect his appeal and dismissed his action. The Court of Appeals found that the time limitations of K.S.A. 19-223 did not apply and reversed and remanded for further hearing. We granted the Board's petition for review.

Keen A. Umbehr, a trash hauler, provides residential trash pickup service for six towns and hauls solid waste for a number of commercial customers in Wabaunsee County. Umbehr hauls approximately 90% of the commercial trash to the Wabaunsee County landfill. Since 1986 Umbehr's contract with the Board has allowed him to dump trash at the prevailing rate for 600 yards regardless of the amount actually dumped.

On March 29, 1990, because of environmental requirements, the Board voted to increase the rates for pickups with sideboards and two-wheel trailers with sideboards from $3 to $4. The rate for dump trucks and compactor trucks was increased from $2 per yard to $4 per yard. The rate for cars, pickups, and pickups with two-wheel trailers was not increased. Twenty-five percent of the fees from the dump trucks and compactor trucks were to be used to pay for expenses previously paid from the general fund and for future expenses.

Under the new schedule, Umbehr's cost would increase from $1,200 per month to $2,400 per month. It would take Umbehr 60 to 120 days to obtain an approval for an increase in residential rates from each of the towns he serves. The new rates were to be effective June 1, 1990.

Umbehr appealed the Board's decision on May 16, 1990. On June 1, 1990, 63 days after the Board's decision, Umbehr filed a petition for declaratory judgment and an application for a restraining order. On August 8, 1990, the district judge in a memorandum decision held the Board's actions were legislative in nature. The judge found that the reasonableness of the Board's action in adopting the new rate could be challenged in a declaratory judgment action and granted a temporary injunction until the court determined the reasonableness of the Board's rate increase.

Later, in a supplemental memorandum decision, the district judge found that the Board's decision to increase the rates was unreasonable and arbitrary. Subsequently, the district judge dismissed Umbehr's action because Umbehr had failed to timely file an appeal of the Board's action within 30 days as required by K.S.A. 19-223. That statute states:

"Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision."

Umbehr appealed the dismissal of his action.

All parties and the district court agreed that the actions of the Board were legislative. On appeal, Umbehr argued that the provisions of K.S.A. 19-223 apply only to appeals from judicial or quasi-judicial actions of a board, not legislative actions such as an increase in landfill user rates. The Court of Appeals agreed the limitations of K.S.A. 19-223 did not apply, citing Dutoit v. Board of Johnson County Comm'rs, 233 Kan. 995, 998-99, 667 P.2d 879 (1983).

While reviewing the statutes and cases cited by the parties, the Court of Appeals observed that because there was no statutory provision authorizing review of the Board action, both parties relied upon Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978). The Court of Appeals noted that Brinson states that in the absence of a statutory provision for appellate review of an administrative decision, no appeal is available, but relief from illegal, arbitrary, and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction. 223 Kan. at 467, 576 P.2d 602. The Court of Appeals concluded that because no statutory provision existed for an appeal from a legislative action by the Board, the district court had equitable jurisdiction to consider whether the Board's legislative action increasing the landfill user rate was unlawful, arbitrary, and unreasonable. The Court of Appeals reversed the district court's finding that the 30-day limitation of K.S.A. 19-223 did not apply, holding that the plaintiff's action was not time barred, and remanded the action for further hearing.

The Board argues to this court that even if the district court had jurisdiction to review its legislative act, its jurisdiction was limited to determining whether the Board had authority to raise the landfill user rates and it could not consider the reasonableness of the rates set by the Board. The Board relies on Cedar Creek Properties, Inc. v. Board of Johnson County Comm'rs, 249 Kan. 149, 815 P.2d 492 (1991), and State, ex rel. v. Unified School District, 218 Kan. 47, 542 P.2d 664 (1975).

Some actions taken by public agencies and boards are legislative or administrative while others are judicial or quasi-judicial. Legislative power is the power to make, alter, or repeal laws or rules for the future. An action by an agency or board that looks to the future and changes existing conditions by making a new rule to be applied thereafter is legislative or administrative. An action by an agency or board that declares and enforces liabilities as they stand on present or past facts and under existing law is either judicial or quasi-judicial. See Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975). The power or function which pertains more to administrative than to judicial, yet partakes of the judicial, is referred to as "quasi-judicial". See Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978).

Power to create municipal corporations, the annexation of land by a city, the assessment of property for improvements, and the setting of rates for use of a landfill are examples of legislative acts. The scope of judicial review of these legislative acts is usually dependent upon a statute authorizing an appeal.

In Nash v. Glen Elder, 74 Kan. 756, 88 P. 62 (1906), we recognized courts have the statutory power to review judicial acts of a county board. In Nash, G.S.1901, § 1172 authorized the Board of County Commissioners to enlarge the boundaries of a city of the third class at the request of the city council, if satisfied that it was in the city's interest and would not cause manifest injury to individuals. G.S.1901, § 1175 allowed any person aggrieved by the order of the board to appeal to the district court.

Aggrieved property owners then brought an action in the district court. The district court observed that a determination that the boundaries of a city should be enlarged was a legislative function and could not be reviewed by the court. The Nash court determined that the board in the exercise of its original jurisdiction has at least two questions to determine when a proper petition is presented: (1) whether the proposed change can be made without manifest injury to the persons owning real estate in the territory sought to be added; and (2) if so, whether the annexation shall be ordered. The first determination is judicial, the second legislative. The court held that under the statutes, the first determination may be made reviewable by a court, although the second cannot. 74 Kan. at 761, 88 P. 62.

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8 cases
  • Robinson v. Shah
    • United States
    • Kansas Court of Appeals
    • 18 Abril 1997
    ...the cause of action for fraud, and we reverse that decision and remand the matter for a trial on the merits. In Umbehr v. Board of County Comm'rs of Wabaunsee County, 252 Kan. 30, Syl. p 4, 843 P.2d 176 (1992), fraud is defined as follows: "A fraudulent act generally is comprised of anythin......
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