197 Kan. 610 (1966) | Cited 14 times | Supreme Court of Kansas | November 5, 1966

The opinion of the court was delivered by

This was an action in the nature of quo warranto brought by theplaintiff, Warren H. Babcock, an individual, challenging thevalidity of seven annexation ordinances enacted by the city ofKansas City and published between February 11, 1965, and

[197 Kan. 611]

     June 4, 1965, which substantially enlarged the city both as topopulation and area.

Issues were formed by the parties' pleadings and the case wastried to the district court of Wyandotte County, sitting enbanc, upon the parties' written stipulation of facts. The fivejudges of the district court made unanimous findings of fact andconclusions of law from which both parties have appealed.

It is necessary to discuss and decide only the city'scontention the district court erred in its conclusion of law thatMr. Babcock, as an individual, had "the legal right to maintainthis action." For reasons hereafter stated, we conclude thedistrict court erred in its conclusion of law, and hold thatK.S.A. 60-1203 does not authorize or empower a private individualto maintain or prosecute an action questioning the validity ofproceedings extending the corporate limits of a city and thatsuch an action can be prosecuted only at the instance of thestate by its proper officers.

Throughout the history of the jurisprudence of this state, thiscourt has never permitted a private individual to bring an actionattacking the legality of the corporate existence of a city,where the plaintiff's right to bring the action was properlychallenged. Likewise, it has been uniformly held that theextension of corporate limits to include new territory, understatutory authority, is, in effect, a reorganization of the city,and an action attacking the legality of such reorganizationattacks the corporate integrity of the city in the same manner asif the city's original organization were attacked. Moreover, thelegality of the organization or reorganization of a city cannotbe questioned in a collateral proceeding or at the suit of aprivate individual but must be prosecuted by the state actingthrough its proper officers. (Topeka v. Dwyer, 70 Kan. 244,78 P. 417; Railway Co. v. Lyon County, 72 Kan. 16, 84 P. 1031;Chaves v. Atchison, 77 Kan. 176, 94 P. 624; Gardner v.Benn, 81 Kan. 442, 105 P. 435; Price v. City of McPherson,92 Kan. 82, 139 P. 1162; Horner v. City of Atchison,93 Kan. 557, 144 P. 1010; Mason v. Kansas City, 103 Kan. 275,173 P. 535; Wellman v. City of Burr Oak, 124 Kan. 780,262 P. 607; Smith v. City of Emporia, 168 Kan. 187, 211 P.2d 101, 13A.L.R.2d 1272.) The cases are legion on the point and the list ofauthorities is not intended to be exhaustive.

In Bishop v. Sewer District No. 1, 184 Kan. 376, 336 P.2d 815,the reason for the foregoing rule was said to be well statedin

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     A.T. & S.F. Rld. Co. v. Wilson, Treas., 33 Kan. 223,6 P. 281, at page 228, as follows: "`It would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons,'" (l.c. 379.)

The same general rule has been applied in situations whereprivate individuals have endeavored to challenge the legality ofthe organization of school districts (A.T. & S.F. Rld. Co. v.Wilson, Treas., supra; Schur v. School District, 112 Kan. 421,210 P. 1105; Scamahorn v. Perry, 132 Kan. 679, 296 P. 347;School District v. Shawnee County Comm'rs, 153 Kan. 281,110 P.2d 744), or made claims that drainage districts were illegallyor invalidly organized (Railroad Co. v. Leavenworth County,89 Kan. 72, 130 P. 855; Euler v. Rossville Drainage District,118 Kan. 363, 235 P. 95; Kimmel v. Wolf River Drainage Dist.,138 Kan. 209, 25 P.2d 585), or sought to enjoin alleged illegallevies of ad valorem taxes pursuant to G.S. 1949, 60-1121 (nowrepealed) or K.S.A. 60-907, where the action is based uponalleged illegality or irregularity of the organization of themunicipality or district levying the taxes. (A.T. & S.F. Rld.Co. v. Wilson, Treas., supra; Schur v. School District, supra;Wellman v. City of Burr Oak, supra; Railway Co. v. SchoolDistrict, 114 Kan. 67, 217 P. 296; Shaffer v. Ford CountyComm'rs, 133 Kan. 256, 299 P. 613.) However, in Schulenbergv. City of Reading, 196 Kan. 43, 51, 410 P.2d 325 K.S.A. 60-907was construed to permit private individuals to attack ordinancescreating a district which had no attributes of corporateexistence and levied no taxes.

In one form or another, commencing with Craft v. Jackson Co.,5 Kan. 518 *, 313, decided in 1870, to Schulenberg v. City ofReading, supra, decided in 1966, the rule that a privateindividual cannot challenge municipal procedure and organizationhas been undeviatingly followed, unless the plaintiff's right tobring the action was not properly challenged. In this connection,the court's opinion in Smith v. City of Emporia, supra, citedthe cases of Stewart v. Adams, 50 Kan. 560, 32 P. 122;Eskridge v. Emporia, 63 Kan. 368, 65 P. 694, and Brown v.Junction City, 122 Kan. 190, 251 P. 726, and stated:

"Appellant insists that Stewart v. Adams . . . and Brown v. Junction City . . . require a decision contrary to the one we have heretofore announced. Without laboring what was said or held in those cases it will be

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      noted that the question of the plaintiff's lack of capacity to maintain the action was neither raised nor passed on. For that reason they are not decisive here. The same is true of Eskridge v. Emporia . . ." (l.c. 193.)

In the recent case of James v. City of Pittsburg, 195 Kan. 462,407 P.2d 503, a private individual challenged the city'sannexation of adjacent land, and in the opinion it was said: ". . . Inasmuch as the city gave no notice of cross-appeal, as provided by statute, its contention, as we have heretofore stated it [that plaintiffs are not the proper parties to maintain this action], is not properly before us and may not be considered." (l.c. 463.)

As indicated by our numerous decisions, the foregoing rule ofuniversal application has been examined and re-examined withgreat care and has always been reaffirmed; it is said to befounded upon public policy and has been consistently appliedregardless of whether the procedure was a direct attack uponannexation such as here presented (Smith v. City of Emporia,supra; State, ex rel., v. City of Kansas City, 186 Kan. 190,350 P.2d 37) or an indirect or collateral attack upon annexationsuch as in Topeka v. Dwyer, supra. The rule has been heldapplicable to all types of actions attacking the legality ofcorporate existence of cities and districts regardless of whetherthe attacking procedure was injunction (Chaves v. Atchison,supra,) quo warranto (State, ex rel., v. City of Kansas City,supra), declaratory judgment (Fairfax Drainage District v. Cityof Kansas City, 190 Kan. 308, 374 P.2d 35), appeals from anorder of the Board of County Commissioners (Lampe v. City ofLeawood, 170 Kan. 251, 225 P.2d 73), habeas corpus (In reShort, Petitioner, 47 Kan. 250, 27 P. 993), or criminaldefense (City of Topeka v. Dwyer, supra).

Since it is clear from our decisions that the foregoing ruleprohibits private individuals from maintaining actions attackingthe validity of proceedings extending the corporate limits of acity, it is necessary to examine the new Code of Civil Procedure,and particularly K.S.A. 60-1203, to ascertain if it made a changeof procedure or substance in the statutory law or whether itremained substantially the same.

In considering this question, it has been held that a change inphraseology or the deleting of a phrase of the original actraises a presumption that a change of meaning was intended.(State, ex rel., v. Richardson, 174 Kan. 382, 256 P.2d 135;Leslie v. Reynolds, 179 Kan. 422, 428, 295 P.2d 1076.) It hasalso been held that in determining the legislative purpose, thehistory of the enactment

[197 Kan. 614]

     of the statute and of its amendments may always be inquired into(Atchison, T. & S.F. Rly. Co. v. State Highway Commission,123 Kan. 576, 255 P. 966); that the words of a statute must betaken in the sense in which they were understood at the time thestatute was enacted (State, ex rel., v. Moore, 154 Kan. 193,117 P.2d 598), and that in determining legislative intent, courts>are not limited to mere consideration of words employed, but mayproperly look to the purpose to be accomplished and the necessityand the effect of the statute, under the different constructionssuggested (City of Emporia v. Norton, 16 Kan. 236, Syl. ¶ 2;Natural Gas Pipeline Co. v. Commission of Revenue & Taxation,163 Kan. 458, 466, 183 P.2d 234).

In April, 1960, the Judicial Council appointed an advisorycommittee of eminent and experienced lawyers and district courtjudges to draft a suggested revision of the Code of CivilProcedure. The advisory committee's work was carefullyconsidered, and as separate sections of the Code were drafted,they were submitted to the Bench and Bar for specificrecommendations. Some of the sections in Chapter 60 were notsubstantially revised, but the committee made substantial changesin the procedural and the substantive provisions of othersections. However, as the sections were submitted, the committeeappended valuable advisory notes so the Bench and the Bar wouldbe informed of what was intended. In the November, 1962, SpecialReport of the Judicial Council Bulletin, the preface reads, inpart: "This bulletin presents recommendations for the revision of . . . Quo Warranto. . . . "This issue completes the recommendations for the revision of the Code of Civil Procedure. The recommendations will be corrected to reflect the suggestions made by the members of the bar, and a bill drafted for the requested approval by the legislature."On pages 3 and 4 of that special report were the followingrecommendations of the advisory committee, in part: "ARTICLE 14 — QUO WARRANTO" "60-1402. Jurisdiction and Grounds . . ." "COMMITTEE NOTES

"This section is the same as G.S. 60-1602 except the fifth ground of the old statute has been eliminated as unnecessary. (Emphasis supplied.)

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"60-1403. Name in Which Action Prosecuted; Damages. Where the action is brought by a person claiming an interest in an office, franchise or corporation, or claiming an interest adverse to a resolution, ordinance, franchise, gift or grant, which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney. Whenever the action is brought by the attorney general or the county attorney against a person for usurping an office, the petition shall state the name of the person rightfully entitled to the office. When the action in such case is brought by the person claiming title, he may claim and recover any damage he may have sustained." "COMMITTEE NOTES "This section is substantially the same as G.S. 60-1403 [sic] [60-1603]. The clause relating to prosecutions in the name of the state has been eliminated as self evident." (Emphasis supplied.)

The final draft of the Code of Civil Procedure as it waspresented to the 1963 Legislature was the result of industriousand careful work on the part of the committee, members of theJudicial Council, and many other lawyers and local barassociations who had studied the tentative draft and madesuggestions. The committee's advisory notes were appended to thevarious sections and were a valuable aid in explaining to theLegislature what the committee intended. The new Code was enactedby the Legislature in a single bill (Senate Bill No. 140) andmade effective January 1, 1964.

It is unnecessary to here trace in detail the legislativehistory of the enactment of Senate Bill No. 140. It is sufficientto say that when the bill passed the Senate and the House ofRepresentatives there was no discussion or amendments to the bill(Senate and House Journals, 1963 Session), and this fact compelsthe conclusion the Legislature relied heavily upon therecommendations of the advisory committee and the approval by theJudicial Council. The advisory committee's recommended quowarranto Sections 60-1402 and 60-1403 now appear in the Code ofCivil Procedure as K.S.A. 60-1202 and 60-1203, respectively, andthe language of 60-1403 heretofore quoted is identical to60-1203. The subject matter of quo warranto as here pertinent,was formerly contained in G.S. 1949, 60-1602 and 60-1603. Thosesections were repealed when the new Code became effective, and achange in the section numbers was brought about when the Code waspublished by the Revisor of Statutes in the Kansas StatutesAnnotated.

As the advisory committee's notes indicate, K.S.A. 60-1203 issubstantially the same as the former statute. (G.S. 1949,60-1603.) The language was rearranged, and the clause relating toprosecutions

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     in the name of the state was eliminated as self evident. Thewords "resolution" and "ordinance" were added so that the clausenow reads: "or claiming an interest adverse to a resolution,ordinance, franchise, gift or grant . . ."

The plaintiff contends that the arrangement of the languageemphasizes the right of a private individual to maintain quowarranto to protect his personal rights; that by the addition ofthe words "resolution" and "ordinance" he may now institute quowarranto proceedings where he can show an interest adverse to aresolution or ordinance, and that the section as revised modifiedthis court's rule of exclusive control by the state through itsproper officers to question acts or proceedings which directlyattack corporate existence. In support of his contention, herefers to the agreed statement of facts that.

". . . for the purposes of this lawsuit that if any person, individual or corporation has an interest adverse to these ordinances . . . this plaintiff has such an interest and is a proper person to bring this action . . ."He further asserts that the clear intent of the Legislature wasto allow private individuals having an interest adverse to anordinance, to file suits in their own name challenging thelegality of an annexation ordinance, and since the parties'stipulations of the facts admit the plaintiff has such an adverseinterest, he is authorized to maintain this action.

We cannot agree with the plaintiff's contention that theaddition of the words "resolution" and "ordinance" invested himwith a right to directly attack the annexation ordinances. Asimilar question was presented in Miller v. Town of Palermo,12 Kan. 14, * 21, decided in 1873. Private individuals challengedthe corporate existence of Palermo. The plaintiffs recognized therule that private individuals could not challenge corporateexistence (Craft v. Jackson Co., supra), but contended anamendment to the Code of Civil Procedure in 1871 (L. 1871, Ch.116, Sec. 2), relating to the name in which quo warranto actionscould be prosecuted and which added the clause, "or claiming anyinterest adverse to the franchise, gift or grant," permitted themto maintain an action in quo warranto attacking corporateexistence. In reply to the contention, Mr. Justice Brewer,speaking for the Court, said:

". . . We do not understand this language as giving a right, but only as prescribing the form of action. No person is authorized to bring an action of quo warranto who did not have that right before; but if one who is authorized does bring it, he must bring it in his own name, and not in the name of the

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      state upon his relation. `When the action is brought,' assumes that the action is rightfully brought. * The amendment consists in adding the clause, `or claiming any interest adverse,' etc.; so that now a person claiming an interest in or one adverse to any franchise must, if entitled to an action of quo warranto, bring it in his own name. What the nature of the interest, then, must be in or adverse to a franchise to secure to an individual the right to this action is not defined. The language used, it is true, is general; `an interest' — any interest' — are the terms employed. But this general language must be construed with reference to the purpose of the section. This, as we have seen, and as is evident, is to regulate the form in which such actions shall be brought; and language thus used should be construed as having reference to rights of action already existing, rather than as creating new rights . . ." (l.c. 23.) (Emphasis supplied.)

If this court denied in 1873 that the addition of the clause,"or claiming any interest adverse to the franchise, gift orgrant," enlarged the rights of private individuals to use quowarranto to challenge municipal organization, it seems selfevident that the addition of the words "resolution" and"ordinance" to that same clause could not grant such a righteffective January 1, 1964. Hence, we conclude the arrangement ofthe language of 60-1203 and the addition of the words"resolution" and "ordinance" was intended by the Legislature tobroaden the field in which private individuals might attackmunicipal procedures by an action of quo warranto where theyallege an interest adverse to a resolution and ordinance, but theaction is limited to attacks which admit the fact of corporateorganization. In other words, while the section broadened thefield of the form of action, it is construed as having referenceto rights of action already existing and did not create any newrights of action. (Miller v. Town of Palermo, supra.)

In our judgment, the conclusion herein announced finds supportin Schulenberg v. Reading, supra, decided after K.S.A. 60-1203became effective, where, as previously indicated, this court heldthat private individuals were authorized to maintain an actiondirectly attacking ordinances of a city creating a district whichhad no attributes of corporate existence.

We hold that the plaintiff had no right to maintain the actionand the parties' stipulations of fact that the plaintiff had aninterest adverse to the ordinances is of no consequence. It is auniversal rule of law that parties cannot, by consent, conferjurisdiction of the subject matter of an action which the courtdid not otherwise have. (Behee v. Beem, 156 Kan. 115, 131 P.2d 675;In re Estate of Freshour, 177 Kan. 492, 280 P.2d 642; Inre Estate of Bengston,

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     182 Kan. 322, 320 P.2d 800.) Jurisdiction of the subject matteris the power to inquire and adjudge whether the facts of aparticular action make that case a proper one for jurisdictionalconsideration by the judge before whom it is brought. It is thepower to decide concerning the general question involved, and notthe exercise of that power. In the instant case, the subjectmatter of the action was the validity of the ordinances of thecity annexing the territory involved. The plaintiff having nocapacity to attack the legality of the corporate integrity of thecity, we are not warranted to consider whether the steps taken tobring the tracts of land into the city were legal or not. Theobjection which the plaintiff makes may only be considered in adirect proceeding prosecuted at the instance of the state by theattorney general or the county attorney pursuant to K.S.A.12-502c. (Chaves v. Atchison, supra.)

The judgment is reversed with directions to dismiss the action.

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