State Ex Rel. Martin v. City of Kansas City

317 P.2d 806, 181 Kan. 870, 1957 Kan. LEXIS 443

• Court: Supreme Court of Kansas
• Decided: November 9, 1957
• Docket: 40,292
• Status: Published

Opinions

The opinion of the court was delivered by

Wertz, J.:

This is a proceeding in the nature of quo warranto brought in the name of the state of Kansas on relation of the county attorney of Wyandotte county against the city of Kansas City, a municipal corporation, and the mayor and city commissioners thereof, to question the validity of city ordinance No. 40,220, whereby the city sought to annex a tract of land within Quindaro township. This tract consists of approximately 2300 acres adjacent to the city and is generally referred to as Fairfax Industrial District.

This court appointed Mr. Milton Zacharias of Wichita as commissioner to hear the evidence. The commissioner, in his advisory capacity (State, ex rel., v. Zale Jewelry Co., 179 Kan. 628, 298 P. 2d 283), made findings of fact and conclusions of law and declared that the ordinance in question was invalid and that defendants (hereinafter referred to as the city or defendant city) should be ousted of all authority in the Fairfax area.

The facts, as found by the commissioner, are largely undisputed. Kansas City is a city of the first class with a population of less than 165,000. The Fairfax Industrial District sought to be annexed consists of approximately 2300 acres of land in Wyandotte county, situated between the northeast boundary line of the city and the Missouri river. Of the district’s total perimeter of 40,790 feet, 16,040 feet form a common boundary with Kansas City. A small portion of the boundary adjoins Quindaro township in Wyandotte county, while the remainder of the perimeter is formed by the Missouri river which bends around the district. To visualize the situation more clearly, reference is made to a drawing of the entire district in relation to the city, found in State, ex rel., v. City of Kansas City, 169 Kan. 702, 222 P. 2d 714.

The district is an urban area with restrictive provisions in the warranty deeds granted by its developers limiting use of the land to manufacturing plants, warehouses and other types of businesses requiring railroad facilities. All but a hundred acres of the district has been sold to industrial firms and developed. Many of the employees of the industries located in Fairfax live in Kansas City. Streets in the district are constructed and connect generally to the public streets of Kansas City, with the exception of a connection across the Fairfax bridge to Platte county, Missouri. Kansas City has constructed various approaches to the district’s roads. The district has its own sewers and dikes, and municipally owned utilities in Kansas City sell electricity and water to the Fair-fax industries. Quindaro township and the industries within the district provide fire protection, although the Kansas City fire department has supplemented this service.

On .these facts the commissioner concluded that there were substantial economic and sociological ties between the Fairfax area and Kansas City, and that “The existence of the district and the recognition thereof by the city have been mutually advantageous to both.”

On June 2, 1925, a purported plat of the Fairfax Drainage District, signed by representatives of the Kansas City Industrial Land Company, early developers of the industrial district, was filed with the office of the register of deeds of Wyandotte county. The plat, expressly filed for record “for taxation purposes,” embraced 1282 acres of the 2300 acres of the industrial district. It indicated the ownership of various parcels of land but did not describe the property by blocks and lots. Conveyances within the industrial district, both before and after filing of this plat, were by metes and bounds and the land was carried on the county clerk’s books by tract numbers, not by block and lot numbers. Ordinance No. 40,220, here in question, sought to incorporate the area by reference to metes and bounds, rather than by description of a subdivision platted into blocks and lots.

The city’s attempt to annex a portion of the industrial district in ordinance No. 35,841, enacted April 4, 1949, was struck down by this court in State, ex rel., v. City of Karisas City, supra.

The statutory authority here invoked is found in G. S. 1949, 13-1602 and 13-1602a, and G. S. 1955 Supp., 13-1602a. The provisions of these statutes applicable here are identical and, in effect, set forth requirements which must be met by a city for four types of annexation. G. S. 1955 Supp., 13-1602a provides:

[1] “Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or [2] whenever any unplatted piece of land lies within (or mainly within) any city, or [3] any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed ... [4] In adding territory to any city, if it shall become necessary for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does hot exceed twenty acres . . .”

The commissioner concluded that the statute contained four limited grants of authority and that the city failed to meet the requirements of any of them. He found that the purported plat, discussed supra, was not a subdivision into blocks and lots for purposes of applying the first section of the statute. He concluded that the area sought to be annexed was not within or mainly within Kansas City within the meaning of the statute and that the statutory requirements were in geographical terms and precluded consideration of economic and sociological factors. He noted that neither of the last two sections quoted, supra, was applicable, inasmuch as the area sought to be annexed was larger than twenty acres and was not sought for the purpose of making the city’s boundary straight or harmonious. Finally, he concluded that the denial of the writ of quo warranto on grounds of hardship and inequity was not justified.

Following the announcement of the commissioner’s report, plaintiff filed motions to confirm these findings and for judgment of ouster. Defendant city filed its motion to modify certain findings of fact and conclusions of law and for additional findings, as well as a motion for a new trial. The commissioner, upon hearing the motions, sustained plaintiff’s motion for judgment and overruled defendant’s motions, filing his report, together with transcript of the evidence and the exhibits, with this court. The case was regularly set for argument and was heard upon the briefs and oral arguments of the parties.

In this appeal, we are confronted with the construction and interpretation of the following two provisions of G. S. 1955 Supp., 13-1602a: [1] “Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or [2] whenever any unplatted piece of land lies within (or mainly within) any city, . . . said lands . . . may be . . . taken into . . . such city by ordinance duly passed.”

At the outset, with relation to contentions later considered, it may be stated that the advisability of enlarging the territorial limits of the city is a legislative function which cannot be delegated to the court and if an ordinance annexing territory is attacked, the court’s duty is only to determine whether under the facts the city has statutory authority to enact the ordinance. (Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456; State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P. 2d 901; State, ex rel., v. Kansas City, 122 Kan. 311, 252 Pac. 714.)

Cities are creations of the legislature and can exercise only the powers conferred by law; they take no power by implication and the only powers they acquire in addition to those expressly granted are those necessary to make effective the power expressly conferred. (State, ex rel., v. City of Topeka, supra; State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270; Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 238 P. 2d 544.)

Defendant city contends that a part of the territory sought to be annexed was subdivided into blocks and lots within the meaning of the statute. Plaintiff contends that the purported plat did not meet the statutory qualifications.

It is noted that the statute appears to define platted lands as land subdivided into “blocks and lots.” Whether the Fairfax Industrial District or any part was so subdivided is a crucial question when determining the validity of this plat. The facts reveal that the proffered plat is not a complete representation of the industrial district but covers only some 1282 acres of the Fairfax Drainage District. The plat was never used for conveyance purposes. The ordinance did not attempt to annex the property as a subdivision. Transfers of property were always made by metes and bounds description. The plat was filed in 1925 and its use was specifically limited to facilitating description of acreage for taxation purposes. It discloses four roads within the entire district. The plat does not show blocks, streets and alleys which conform to those of adjoining Kansas City. It was not filed without reservation. It shows that the Kansas City Industrial Land Company did not dedicate for public use any streets, alleys or public highways, except as indicated thereon. Other forms of way were private property and were held by the company for its own use. It cannot be said that the plat complies with the provisions of G. S. 1949, 13-1413 in relation to platting and subdividing a tract of land. It further appears from the plat that there were embraced therein some fifteen tracts of land of assorted shapes which ranged in size from one to 161.38 acres and some of which were not bound by any road or street. The plat discloses no lots or blocks but only tracts by number.

We have interpreted the word “block” to mean a space in a city usually rectangular in shape, enclosed by streets and used or intended to be used for building purposes. While blocks do not have to be any particular size or shape, there are certain standards to which a lot or block must in some measure conform. It cannot be said that the tracts of the size, shape and area disclosed on the purported plat could be construed as “blocks.” Courts apply to words the definitions already given them by common usage. According to all dictionaries and the popular understanding everywhere, a “block” is a portion of a city surrounded by streets. In common practice, city plats are made to conform with this understanding and the legislature had in mind blocks so constituted and not tracts arbitrarily designated as such by the donor of a plat. (Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405; McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438.) For a compilation of cases on this subject, see Berndt v. City of Ottawa, 179 Kan. 749, 298 P. 2d 262.

We agree with our commissioner that the area sought to be annexed had not been subdivided into lots and blocks within the meaning of the statute in question.

Next, it must be decided if this unplatted land is “within or mainly within” the city so as to be annexable. There has been little litigation on this point, but the context of the statute indicates that “within” must be equivalent to “surrounded by” the city. It would be natural, for example, to provide for annexation where the city has grown around unannexed unplatted lands.

The word “within” has been defined as “being inside the limits of.” (Ballentine’s Law Dictionary, 2nd Ed., p. 1367; 97 C. J. S. Within, p. 330.) The word “mainly” has been defined as “principally,” “chiefly,” “in the main.” (38 C. J. Mainly, p. 334; 54 C. J. S. Mainly, p. 897.) If “within” means surrounded, “mainly within” a city would mean that a common perimeter of more than fifty per cent was present. To impute any other meaning would obliterate any distinction between the test for annexing platted (such as adjoining or touching) and unplatted lands. Unquestionably, the legislature intended a distinction.

As we have discussed the statute, physical connection is the test of what is “within or mainly within” a city. In the instant case, only forty per cent of Fairfax’s total perimeter adjoins defendant city’s boundary. Since the city cannot grow into the Missouri river and surround the district any farther, it contends (1) that the Missouri river should be counted as city boundary, or at least (2) that the city has surrounded Fairfax Industrial District as much as possible and thus Fairfax is “within or mainly within” the city. We cannot agree with either contention. It must be presumed that the legislature was completely aware of this situation and chose to make no exceptions to the plain terms of the statute. This court is not justified in adding additional words and, as a consequence, giving a new meaning to the statute. Since the legislature imposed a requirement which must read in strictly mathematical terms and since it made no exceptions, this court would be usurping legislative functions if it allowed an exception to be carved out of the statute because of the peculiar geographical situation involved in this case.

Our cases dealing with unplatted lands assume that more than one-half of the perimeter of the unplatted land sought to be annexed must have a common boundary with the city. (See State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; State, ex rel., v. City of Hutchinson, 109 Kan. 484, 207 Pac. 440; State, ex rel., v. Kansas City, 122 Kan. 311, 252 Pac. 714.)

Several arguments may be made to show that the statute imposes a geographical requirement, rather than an economic and sociological one. G. S. 1949, 12-501, et seq. provides a method for annexation of adjacent land by city petition to the board of county commissioners which may grant the petition if it finds that annexation is advisable. It is clear that in determining advisability, factors of economic interaction and mutual benefit must be considered. Where the legislature intended such factors to be considered, it declared this intention specifically. In 13-1602a, it indicated no such purpose. Also, the holding of this court in State, ex rel., v. City of Topeka, 172 Kan. 745, 243 P. 2d 218, that a city of the first class with a commission form of government may annex under either 13-1602a or 12-501, et seq. indicates that 13-1602a does not supersede 12-501, et seq. and in effect provides different and alternative requirements.

Furthermore, use of an economic and sociological test would bring the court into the realm of deciding questions of the advisability or prudence of the extension of a city’s boundaries, a function which this court has expressly declared to be legislative in nature. (Ruland v. City of Augusta, supra.) The terms of 13-1602a are clear and definite. They should not and cannot be enlarged or extended by this court with the aid of inferences, implication and strained interpretations. The language of the statute cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purposes for which the statute was enacted. The policy of legislative enactment is for the legislature and not for the courts. (State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 760, 258 P. 2d 225.)

We agree with our commissioner that the area sought to be annexed does not lie “within or mainly within” the city as contemplated by 13-1602a.

It is further urged by the city that the court should deny in its discretion the writ of quo warranto on the ground that it is inequitable and unjust, that a failure to so deny would work a hardship on the city. This same contention was made in the case of State, ex rel., v. City of Kansas City, 169 Kan. 702, 717, 222 P. 2d 714, wherein we said:

“It is true the court has a measure of discretion in quo warranto proceedings. (See, State, ex rel., v. Allen County Comm’rs, 143 Kan. 898, 57 P. 2d 450, syl. 3, and the cases collected at page 902; also, Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584; State, ex rel., v. Grenola Rural High School Dist., 157 Kan. 614, 142 P. 2d 695, and cases collected in the American Digest System, Quo Warranto, Key No. 6.) This is a judicial discretion. It is not to be used without reason and does not authorize a court to ignore a valid applicable statute which has been promptly invoked.”

In the instant case timely action was taken to question the validity of the ordinance and it would be inequitable to deny the writ under the circumstances of this case. From an examination of the entire record, we are of the opinion that the defendant city had no authority under the statute (G. S. 1955 Supp., 13-1602a) to enact the ordinance. As a result, judgment must be rendered for plaintiff, holding the ordinance in question to be invalid.

It is so ordered.