Wulf v. City

• Decision Date: 08 February 1908
• Docket Number: 15,706
• Citation: 94 P. 207,77 Kan. 358
• Parties: H. F. WULF et al. v. THE CITY OF KANSAS CITY et al
• Court: Kansas Supreme Court

94 P. 207

77 Kan. 358

H. F. WULF et al. v. THE CITY OF KANSAS CITY et al

No. 15,706

Supreme Court of Kansas

February 8, 1908

Decided January, 1908.

Error from Wyandotte district court; J. MCCABE MOORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Taxation -- Legislative Powers -- Municipal Corporations. Chapter 115 of the Laws of 1907, authorizing and requiring cities having a population of more than 50,000 to have and maintain a system of public parks, parkways and boulevards, and providing for the appointment by the mayor of a board of park commissioners to devise, improve and superintend the same with authority to issue city bonds and levy taxes therefor, subject to the restrictions contained in the act, is a valid and constitutional enactment, so far as its operation and effect is challenged in this action.

2. CONSTITUTIONAL LAW -- Valid Tax Levy. The levy of a tax by such board of park commissioners of one-half of a mill on the dollar for general park purposes is a valid exercise of power under such act.

Nathan Cree, for plaintiffs in error.

T. A. Pollock, for defendants in error.

OPINION

BENSON, J.:

The question to be determined is whether chapter 115 of the Laws of 1907, relating to parks and boulevards in cities having a population of more than 50,000, is a valid law sufficient to authorize a tax for a general park fund. The park commissioners of Kansas City, Kan., levied a tax of one-half of a mill on the dollar, under section 9 of that act, to create a general park fund, and the plaintiffs, property owners and taxpayers of such city, sought to enjoin the enforcement of this levy. A demurrer to the answer having been overruled, the plaintiffs seek to have that ruling reversed.

The act provides for the appointment by the mayor, without confirmation, of a board of park commissioners composed of three freeholders, residents of the city, to serve for two, four and six years, respectively, their successors to be appointed for six years. This board is authorized to appoint a clerk, and to employ and discharge engineers, surveyors, attorneys, agents and servants, and to make by-laws. Two members constitute a quorum. It is to make annual reports to the city council; adopt a seal; in the name of the city prosecute and defend suits; create and provide for the payment of debts; draw warrants on the city treasurer; purchase, sell and convey property; make contracts; issue bonds; levy taxes and special assessments; and do all other acts proper or necessary to carry out the provisions of the act, subject to the limitations therein. It may levy taxes, not exceeding one-half of a mill on the dollar, on the taxable property in the city for a general park fund, and the same amount upon the property in any park district for a district fund. It is to devise a system of parks, parkways and boulevards; to select routes and streets for boulevards and parkways, and cause the same to be opened, widened, improved, and maintained, and to acquire land therefor by purchase or condemnation; and to manage and control such parks, parkways and boulevards. It may issue the bonds of the city, to be paid by a tax on all the property within the city, or within a park district, as it shall determine, and sell the same. If any issue of bonds or any debt created by the board exceed $ 5000, the resolution therefor shall be subject to the veto of the city council by vote of two-thirds of all the members thereof. Bonds in excess of $ 75,000 cannot be issued in any one year, and the amount of bonds cannot, at any time, exceed five per cent. of the assessed value of the taxable property. The bonds and interest thereon are to be paid by taxes levied by such board upon the property of the city or district. It has the power to grade and pave boulevards, to build and repair sidewalks, improve sidewalk spaces and plant trees along the same, and issue bonds and levy assessments therefor. It may, with the approval of the mayor and council, declare any street or part of a street in the city a boulevard or parkway. The act contains regulations to govern the board in carrying out the foregoing and many other provisions.

The petition alleges that the board is proceeding under section 9 of the act to levy a half-mill tax on all property in the city, and this the plaintiffs seek to enjoin. Section 9 is as follows:

"The board of park commissioners of any city are authorized to levy, by resolution of said board, an annual tax on all the taxable property of the city of not to exceed one-half mill on the dollar to create a general park fund to be used by them in carrying out the provisions of this act, and to certify said levy to the county clerk and have the same placed upon the tax-roll and collected as other taxes." (Laws 1907, ch. 115.)

The provision that the commissioners shall hold their offices for six years is in violation of section 2 of article 15 of the constitution. (Gen. Stat. 1901, § 228.) The term of office by the act being unconstitutional, the tenure thereof is not declared, and the office is held subject to the appointing power. (Lewis v. Lewelling, 53 Kan. 201, 36 P. 351, 23 L. R. A. 510.) This invalid provision does not therefore make the whole act void.

The claims of the plaintiffs, briefly stated, are that the act is void because the legislature had no authority to delegate to the park commissioners the power to incur indebtedness and levy taxes; that all legislative power is vested in the legislature, and cannot, in the absence of an express provision of the constitution, be delegated, except to public municipalities; that this exception rests upon an implied authority, and that the power so delegated can be exercised only by the elective governing body of the municipality. From these propositions is deduced the conclusion that the act giving these powers to the park board is void, unless there is some express constitutional provision authorizing such delegation of power, and that the onus of pointing out such provision is upon the defendants.

The claims of the defendants may be thus summarized: All legislative power is vested in the house of representatives and senate -- the legislature. All legislative power having been thus given, none was reserved, except as stated in express provisions of the constitution specifying such limitations or in the federal constitution concerning subjects delegated by the people to the congress. The deduction from this statement is made that the legislative act in question is valid, unless the plaintiffs can specify some express provision of the constitution violated by its terms.

These respective challenges -- of the plaintiffs to produce express constitutional warrant for the law, and of the defendants to point out the constitutional provision violated by it -- would be relatively unimportant if they were mere exhibitions of strategy in argument, but they go deeper and rest upon a fundamental difference in constitutional interpretation. The plaintiffs claim that, notwithstanding the grant of power to the legislature, limitations must be implied upon that power beyond the express restrictions of the state and federal constitutions, growing out of the essential nature of free government, and that among these reserved or retained rights is the right of the electors to choose those to whom they will entrust the power to create debts and levy taxes to pay them. The defendants reject all reservations not found in the constitution, state or federal, and all restrictions upon legislative power except such inhibitions as arise by necessary implication from some express provision of the constitution itself. The arguments fairly present these conflicting views, which will now be considered, and first with reference to our own decisions.

In Hines and others v. The City of Leavenworth and others, 3 Kan. 186, it was declared:

"Article 12 of the constitution treats of corporations. Its various sections are not grants of power to the legislature, but were intended to regulate with reference to corporations the exercise of the general legislative power conferred by a preceding article. . . . Section 5 of article 12 is as follows:

"'Provision shall be made by general law for the organization of cities, towns and villages, and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.'

"This does not, nor was it intended to, confer upon the legislature power to provide for the creation of municipal corporations, but was intended to regulate the exercise of that power as conferred in the general grant of power." (Pages 198, 199.)

In the same opinion the court said:

"When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It is a subject wholly under the control of the political department of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final." (Page 204.)

This view was approved in City of Newton v. Atchison, 31 Kan. 151, 1 P. 288, 47 Am. Rep. 486, and Belleville v. Wells, 74 Kan. 823, 88 P. 47. In Atchison v. Bartholow, 4 Kan. 124, it was again held that section 5 of article 12 of the constitution was not a grant of power but a restriction upon the powers already granted. The court said:

"The whole of this article is merely restrictive of the general power conferred by section 1 of article 2. It adds...