102 Kan. 325 | Kan. | 1918
The opinion of the court was delivered by
The state brings an action in the nature of quo warranto against the city of Hutchinson for the purpose of determining whether a certain tract of land is within its corporate boundaries. Clay township, which adjoins the city at the place where the boundary is in dispute, is also made a defendant. The petition alleges that the land is within the city, but that the city, as well as the township, denies jurisdiction, over it. The case is submitted upon the city’s demurrer to the petition.
1. The city contends that quo warranto will not lie to correct its conduct in refusing to take jurisdiction of the tract in dispute, even if it be under a legal obligation to do so. Quo warranto is generally recognized as the proper method of seeking relief where a municipality undertakes to exercise control over disputed territory. (28 Cyc. 212; 23 A. & E. Encycl. of L., 2d ed., 638.) Here the situation is novel in that the city and township each seeks to impose upon the other the responsibility for the government of the doubtful territory. This attitude is accounted for by the fact that an accident has taken place upon a highway therein, which will doubtless result in claims for damages being made against whichever body is charged with the duty of maintaining it. A question as to the true boundary of a municipal corporation cannot ordinarily be raised by an'individual (Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010), and an action by the state seems the appropriate means of settling a controversy in that regard. An essential part of
2. According to the allegations of the petition, the tract in question is situated within the boundaries of the city as they were established up to 1890. On August 8, 1914, an ordinance was passed which was described in its title as one extending the city limits. It undertook to define by course and distance the new boundary line in the vicinity of the disputed tract. There was some repugnancy of calls at this place, but a part of the line described would necessarily lie inside of the boundary as it existed in 1890. The plaintiff contends, and the contention is clearly well founded,' that inasmuch as the title of an ordinance is required to express its subject (Gen. Stat. 1915, § 1413), any part of this one which undertakes to reduce the territory of the city is rendered void by the fact that the title refers only to an extension and not to a restriction of the limits.
‘3. The city does not seem to controvert this proposition, but argues that in order to uphold the ordinance we should presume that prior to its adoption the boundaries as established in 1890 had been changed to conform to the line it describes. The petition does not say in so- many words that no change of boundary was made between 1890 and the date of the ordinance, but we think it must be regarded as doing so by. fair inference. It alleges that in 1890 the limits of the city were defined “as at present constituted,” and that prior to August 8,
The demurrer to the petition is overruled, and the city is allowed thirty days from this date in which to file an answer, if it desires to do so, setting out specifically any proceedings upon which it relies as having effected the exclusion of the tract in question.