*1 46,938 No. Appellant, Commission, Midland

Hutchinson Human Relations Inc., Appellee. Management, Credit 158) (517 P. 2d *2 8, Opinion December 1973. filed Robinson, argued city attorney, cause and was on A. the brief for John appellant. Cronhardt, Hutchinson, argued Lane H. of cause and was on the brief appellee.

for the Ryan, Topeka, argued cause, Miller, attorney gen- David L. of Vern and eral, Roger Lovett, Topeka, Charles S. Scott and W. both of were him with Rights, on the on brief for Kansas Commission Civil National Association for People, of Advancement Colored American G. I. Forum and Human Association, Relations amici curiae. Joseph Zima, Topeka, F. Duane Roberts and W. both of were on the brief Kansas, Carlton, for State ex rel. D. Commissioner, Darrell State Labor amicus curiae. opinion court was delivered by This is an Fontron, action specific performance of “con- J.: ciliation agreement,” an instrument prominently known in the field of civil It rights. by the Hutchinson brought Human Relations against Commission Midland Credit Management, Inc. We shall refer to the Commission, parties plaintiff on the one baufl^ or Midland, defendant on the other. Dining the pleading Midland filed a stage dismiss, motion to a motion for summary judgment, answer. The trial granted the motion to and the dismiss Commission appealed. way background the City Hutchinson, Kansas,

By first adopted a human relations ordinance in 1968. That ordinance was repealed ordinance, in 1971 the present No. was adopted in its Some time thereafter stead. a complaint, which is not con- record, tained in the lodged against was Midland alleging an unfair practice violation employment ordinance, and on March following entered into: “THIS day AGREEMENT made entered into as of the 3rd COMMIS- RELATIONS HUMAN March, HUTCHINSON between the Commission, CREDIT and MIDLAND SION, to as referred hereinafter Respondent. as the INC., MANAGEMENT, referred hereinafter Chapter 37, of the Code 37-6 Section having under complaint filed been “A against Respon- Bobby Burén Hutchinson, Kansas, Van Mrs. allegations having to credit Cause dent, found Probable the Commission race. The Respondent’s to hire because of failure due to agree parties hereby do settle the conciliated, to and having been

matter following and manner: extent matter in the above company to offer agrees policy of his Respondent is the stated that it “1. race, regardless positions persons promotion to all in all agrees ancestry. Respondent color, origin further religion, sex, national together to assure is carried policy, directives with communicate (or supervisors) employees written memo out, his his all to all copy of said memo. the Commission furnish minority people qualified actively agrees Respondent recruit and hire “2. vacancy occurs job the next staff classifications when positions the office specific job in this area. (Deleted agreement.) “3. motion, may, agrees own review Respondent on its that the Commission “4. *3 present agreement. compliance with the terms of agrees Satisfactory Adjustment, to close this case a “5. The Commission as performance by Respondent subject promises represent- to (sic) contained herein. atives omitted.)” (Signatures are 5, 1972, brief, On the instant action was May filed. In alleges making agreement as a result of a con- petition settlement; 10, 1972, that about Midland ciliation an April placed the Hutchinson News and on hired secretary April ad for to fill that Midland secretary female breached position; a white failing to recruit and actively minority hire agreement willful, the next and that the breach was existing vacancy; for person just without cause. The concludes with a petition wanton in lieu of the contract or thereof for performance for specific prayer damages. damages punitive $1000 $500 court, lawsuit the trial dismissing plaintiff’s in a well- memorandum summarized its opinion, reasons for prepared doing so categories: under four ordinance exceeds the (1) police power The ordinance granted (2) empowers cities. the Commission to only, not performance damages seek breach of contract. contrary in that an public policy (3) employer be forced to hire a lesser would black than a qualified better white. of an qualified (4) (a) Specific performance illegal agree- ment is enforce will not (b) improper. Generally, equity specifically An agree- contract third a breach of to a involving party. (c) duty ment made refraining prose- in consideration or of preventing cution for To Midland crime is against (d) policy, compel public could discharge a white and hire a minority person employee unlawful employment practice.

In its statement of asserts that the trial Commission points court erred in dismissing the action on the several grounds assigned. We shall discuss the raised on sum- points appeal sequence court, so, marized trial by the but before we doing pause point out certain provisions Hutchinson ordinance deemed material. It provides for a Human Commission of Relations seven resident Hutchinson citizens who are to be by the appointed mayor the consent of functions, the city governing duties body. Among and responsibilities ordinance, enumerated in section 37.4 of the receive, initiate, Commission is given authority investi- (1) gate, pass upon to conciliate all attempt complaints alleging discrimination, segregation separation employment, public race, accommodations or in public housing because of religion, color, national origin ancestry; court, to the district (2) apply filed, after a ordinance; complaint has been violation of enjoin (3) to the district court for enforcement apply con- ciliation agreement by seeking specific performance the agree- ment. The also ordinance contains a section out setting complaint and other procedures, defining sections unlawful employment, accommodations housing procedures. The first point Hutchinson, consideration whether the enacting ordinance, has acted within —or in excess of—its well, police power. point encompasses, This questions relating conflict with Kansas statutes and preemption civil rights *4 matters the state.

The ordinance itself declares to be the of policy the city the exercise of its for the of police power protection the public welfare, health general and for the safety, public maintenance of and good government business and for the promotion of the city’s and trade and commerce eliminate prevent discrimination, segre- race, sex, color, or because gation separation religion, national or and to assure origin ancestry, equal and opportunities encourage- in securing ment to every person employment, equal accom- housing modations and equal opportunities. history in time and at this point to say

We would be hard pressed discrimination the poison to eliminate legislation designed Recent police power. not a exercise our midst is proper com- demonstrate, in urban particularly far to experience gone and a direct munities, minorities has against that discrimination government, orderly processes on tire detrimental impact health, and community, of a peace tranquility safety its general well-being of residents. and other forms of discrimination from racial arising

Problems centers; cancer of injustice common in especially population on the virulent peculiarly toward members of minority groups and must scene; a essentially people problem, local discrimination is where in the localities by people with and solved eventually dealt live. they we believe contrary is some authority there

Although ordi- of a civil be that the enactment more rational view to as power of a municipality’s police nance is a exercise proper health, safety, general convenience tending promote Marshall v. is reflected in citizens. This view welfare of its challenged the plaintiff 2d 877 in which 355 S. W. City, (Mo.), declared it ordinance which a Kansas constitutionality restaurants, and motels to refuse serve or hotels unlawful for reason directly indirectly person accommodate any constitutional, that the ordinance was In deciding to race. related said: the Missouri court municipal ordinance, designed to hold that “We are constrained restaurants, prevent or color in bears sub- reason of race a specific grant power regulate to the stantial and reasonable relation comfort, safety, health, convenience welfare of to the restaurants fairly police power referable to the

inhabitants of (Citing cases.)” (p. 883.) corporation. municipal Co., District Columbia v. S. Thompson In the case of U. S. Ed. 73 Ct. assailed Thompson validity 97 L. Legislative District of Columbia Assembly of two acts of it an making in 1872 and offense to discriminate enacted account of race or color to refuse on service to against person each of the ordinances grounds. him on such upholding the federal court power, exercise of out that police pointed valid had it body the District constituted creating corporate Congress and had vested municipal purposes legislative authority

313 within the legislation subjects all extending rightful Assembly district. the of power grant the congressional analogized say: on to and went municipalities,

district of a to its with that state chooses, fashion state, why if it so “. . . is no reason There municipal cor- its self-government to grant its basic law so as to home rule 544, Columbia, 540, S. porations. 91 U. v. District The Court in Barnes 21, 1871, which we construing February one with Organic the the ofAct presently concerned, stated: “ including duties, those municipal corporation, of its ‘A of all exercise the legislature strictly department State. internal, most local or is but receiving, making it a may give being capable powers it all the such a locality.’ State miniature within its theory provisions of some “This the which underlies the constitutional allowing states cities rule. So it is that decision after decision to have home police delegated power municipalities has held that is as broad as the power state, power may except restricted terms of as that grant (pp. 109.) 108, . . .” state constitution. Common- court in Kentucky A similar tbe view is expressed wealth an ordinance v. 2d 444 Beasy, upholding 386 S. W. (Ky.), accom- places Louisville prohibiting In that race, etc. color, origin, national modations on account of case the court said: Obier, Ky. held that “. . 7 S. 2d . In Fowler v. W. police power granted by class is as broad as of the first charter to cities police power (p.447.) of the state. . . .” (Article Amendment voters the Home Rule adopted effect 1961. 5) July at to take election in 1960 general held empowered

Under amendment cities are provisions subject and government determine their local affairs are spelled Hmitations limitations found in amendment. These Walsh, 1, 7, 509 P. 2d out in the recent case of Claflin at time. 1130, and need not be this repeated of the Home Amendment and discussing import Rule on the between the state and its munici- impact relationship sundry court, through this Mr. had palities speaking Prager, Justice to say: (d) requires powers of Article 12 a liberal construction of “Section authority granted purpose giving largest cities for the cities self-government. provision simply This means that the rule measure home power upheld of cities is and should be unless is a sound reason favored there deny legislature city’s power it. has acted some area a act Where the clearly preempted upheld unless should be in the same area *6 conflict between city is actual a preclude action. Unless there as to the field so city permitted statute, should ordinance be municipal the ordinance 318, Atchison, Kan. 492 P. 208 2d Owners Assn. v. (Leavenworth Club stand. 183.)” of the act appears purport spirit This assessment when it enacted Legislature taken by accord with view statutes 1963, relating specific 90, many repealing L. Chapter cities of the first class. had been granted previously which powers following find “whereases”: the Act we Section 1 of Preceding legislature necessary confer longer state to “Whereas, for the It no is government powers in that such upon affairs and their local over cities 12, 5, by directly upon section article authority them is now conferred constitution; and Kansas specific powers formerly granted Many cities “Whereas, statutes which government, statute book but are no remain local affairs and over their repeal- (Here repealed . .” follows the longer necessary . should ing chapter.) section of the conflict the Kansas Act Against discern no essential between We 44-1001, seq., et S. A. and the (K. Discrimination amended) on Human Relations. While the Hutchinson Ordinance two relate do not subject, they to the clash. The same ordinance generally rather than the statute simply supplement to counteract appears with it. The ordinance or be at cross follows the purposes statute authority possessed by but Hutchinson many respects is, fact, more restricted and Commission circumscribed than that the Kansas Anti-discrimination Commission. reposed in Atchison, Assn. Leavenworth Club Owners In v. 208 Kan. 318, 183, that: 492 P. 2d we held “Generally municipal regulation merely imposed is which additional to that (Syl. 2.) cannot be said to a conflict state law create therewith.” ¶ regulation

Generally speaking, mxxnioipal which adds simply state not complements may law be said to create a conflict there- has with unless statute limited requirements to its own pre- S., C. scription. (62 Corporations, Municipal 143 (3), p. 293.) J. Henre, 794, v. City Pac. this court said: power upon [Wlhere “. . is . conferred cities enact ordinances for the preservation peace good order within the preservation or for the of its although the health inhabitants legislature exercised has provided regulations subjects. state on the same . . 797.) .” (pp. We believe what the New York court said on this point Mtr. 360, 363, 2d Rgts., Human 53 Misc. Feigenblum Comm.

N. Y. S. germane: 2d is rights petitioners’ on human “The the New York law that contention Legislature has not The New York State untenable. unconstitutional housing. pre-empt indicated . . . an intent to the field of discrimination prohibit merely supplements Here the local the State It law Law. does permits, that which the State nor does it allow that which the State law they entirely forbids. In this case consistent and follows the conclusion Inc., (City Clafington, New local law is valid York v. 40 Misc. 2d 547). conferring upon Moreover the creation of the State Commission and the powers merely possible it of certain affords an additional forum or avenue for prohibited by statutory redress of actions constiutional or law. . . .” It is amicus, insisted both Midland and Labor Com- State missioner, that preempted field of civil state, exclusive action at least far so as discrimination *7 in matters of concerned. it difficult agree We find with this position. Kansas Act Discrimination contains no preemptive provision among whatever its numerous sections and we view omission of a that having kind as provision signifi- Club, Wichita, Star cance. In Blue Inc. v. Supper City 208 Kan. 731, 735, 495 P. 2d we said that the omission of a preemptive in a provision statute clubs could not relating private be viewed unintentional, as since the legislature was aware of undoubtedly the manner in which state-wide be preemption may accomplished.

An intent on the of the retain part legislature juris exclusive diction in a area must legislate given clearly shown. Where gathered language such an intention cannot be itself, extrinsic may statute whatever evidence there be of prescrip convincing tive intent must be clear and before power to can be said to have been withdrawn from our cities. regulate Lamborn, Walsh, v. Beloit v. 182 Kan. City (Claflin supra; Worcester, _ Mass. _, 177; Bloom v. 293 321 P. 2d N. E. 2d 268.)

In our no of a judgment compelling prescriptive there is evidence intent in K. S. A. the case before us. Our attention been called to 1972 and 44-1110. Both statutes Supp. might, implica- 44-1024 tion, that the not intend to suggest be said to did pre- entirety, although the field of civil area in empt rights inference therefrom. contrary defendant would us draw a have Bill No. 223 is now pending We are also aware Senate which bill would this legislature. By express pronouncement before 316 of a for the creation cities to ordinances

empower adopt providing restrictions. While commission, to certain subject human relations it this the Senate was held over piece legislation cleared House, note the where now We bill introduced languishes. had handed down its decision after the trial court in case From what at Senate transpired ordinance invalid. declaring may held on the bill we infer that a hearings principal committee the uncertainties created reason for its introduction was eliminate event we do not judgment. the district court’s view clear, convincing unambiguous of the measure pendency civil legislative preempt evidence intent entire state action. field for exclusive

We turn the second covered in the trial court’s decision: point The Commission has question damages. prayed or in lieu thereof actual and performance $500 The ordinance authorizes damages. the Commission punitive $1000 to sue for but silent as to of dam- specific performance recovery ages. that would have us invoice rule where it is im- plaintiff grant full relief

possible by decreeing specific performance of a discretion, court, in the exercise of its contract award may Troika, 549, 553, in lieu thereof. v. 92 Kan. damages (Knipe 557; 168, 169, 445; Brush Pac. v. 178 Pac. Owen Boyer, 860; 2d Christopher, Kan. P. 49 Am. Jur., Specific Performance, 172, p. 195.) here. If

We believe rule is not a breach of contract applicable trial, at be established adduced we hold by evidence afforded the relief means opinion adequate plaintiff by *8 of both performance. interests eradicating Commission lie in insuring peace, health and general welfare rather than in re- community, We do not view the Commission covering money damages. as being case, an context of or in aggrieved person this the sense of having wrong suffered an dollars. It injury compensable is us conjure monetary damages difficult for basis so far up concerned, unable, at as the Commission is its counsel was oral us in this greatly respect. to assist argument, itself does not authorize the Commission to sue The ordinance are to hold that such and we constrained damages for monetary may not be recovered in this action. So far as punitive damages are concerned they allowable when actual only damages may be awarded. likewise, Thus they, may not be recovered in this action. Shore, (Shore 1027; 111 Kan. 205 Pac. Behymer v. Milgram Stores, Inc., Food 101 P. 2d 912.)

We have not curiae, overlooked the several cases cited amici by Kansas Commission on Rights, Civil National Association for the Advancement of Colored American G. I. People, Forum and Kansas Human Association, Relations as right recognizing ag- grieved person to recover damages resulting the violation of rights. his civil We no have quarrel the underlying rationale of those cases, but the rale they espouse no here. application In each of the cases cited amici action by brought by individual whose civil rights had been to his violated personal prejudice and damage. The situation is different quite here. This action is maintained Commission on Human Rights, governmental agency. The individual may who have been person- ally aggrieved by Midland’s her alleged failure was Ms. employ Van Burén according is to the record. She not a law- party suit in she is not in com- any capacity; seeking damages monetary pensation any loss to her. accruing whether, third the trial court had point to be considered is as

ruled, the conciliation “is under against public policy its terms an would be forced to hire a lesser employer qualified black applicant to the detriment a better of both the employer qualified white applicant.” associated with this Closely question the court’s subsequent declaration: “To the defendant now compel his discharge white a member of employee and hire the minority race, essence, could be an unlawful practice.”

With respect assertion, to the court’s latter we have been given to understand that no employee removal Midland sought in this action. In amici curiae brief of Kansas Commission on Civil Rights and its colleagues, is conceded that “it be in- equitable to dismiss secretary already hired defendant and Beulah require Van Buren’s hiring.” accept We this concession at face value.

We have been advised on oral by plaintiff argument amici in their brief the intention of parties expressed the second paragraph conciliation agreement was that defendant be re- to hire a quired black qualified person the next in vacancy

318 in that paragraph import shall consider office We staff. context. answered, for the courts easily is not presented

The question analo- situations somewhat on deal have been called which across we have run no Although accord. complete are not gous federal, courts, both state and a number cases point, squarely victims fully compensate order necessary it have found or practices rectify unfair labor discrimination, correct past racial on imbalances, ratios or em- hiring quotas to impose racial existing similar impose of time measures for limited ployers periods examples A will serve to illustrate the on few organizations. labor developed majority we believe has pattern which cases. reported 315, 330, F. where the Gallagher,

Both sides cite Carter 2d defendants, members of the Minneapolis trial court directed Chief, Civil and the Fire absolute give pref- Service Commission erence for fire twenty minority applicants fighter posi- in certifying tions for such The circuit court who were able posts. to qualify banc, “the sitting acknowledging en while appeals, legitimacy of erasing effects racially discriminatory practices” felt past the district court operate absolute ordered would preference as an nonminority group on the members who infringement were court did sanc- superiorly qualified. appellate equally tion, however, the twenty persons certification of qualified minority aon 1 to 3 ratio. 212, Etc.,

In No. United States v. Local Union F. 2d court defendant labor union a district challenged ruling which re- it quired participate program. training imposed was plan challenged because member- mandatory ship quota of 11% in the union and thus blacks black granted persons preference greater over with equal qualifications. whites This rejected contention was appellate which held that the either Fifth program prohibited or Fourteenth Amendments. case of United Ironworkers Local States v. 443 F. 2d

544, the federal district court ordered various local unions offer discriminatees, referrals to job previous and further required apprenticeship training committees of the -unionsto select and indenture sufficient applicants black overcome past *10 sustaining In an opinion requirements. meet judicially imposed stated: court, the trial court the appellate power Attorney court elim- and the trial “The Act General vests in the present vestiges discrimina- past and terminate both

inate practices. tory (p.553.) . . .” in United line will be found federal along Further rhetoric U., No. Wood, & Int. 471 F. 2d States Wire Metal Lath. Loc. trial by an administrator appointed case which of discrimination be recommended, had in order that effects past remedied, basis, a one to one one that work on issued permits In an black, opinion white to for a limited time. period one affirmance, the court said: appellate quotas quotas merely forbidden, “However, to attain while racial balance (p. past practices 413.) discriminatory . . .” correct are not. Local No. 67 v. In Iron Workers

Two state cases:bear analysis. Hart, commission 191 W. 2d 758 the state civil N. (Iowa), union, things, issued an the defendant among order other requiring to admit a This order upheld. worker to union membership.

In Arnett v. P. Seattle General 65 Wn. 2d 2d Hospital, discrimination in plaintiff with racial refus- charged hospital her for in its ing accept depart- application dietary ment. The State Board Discrimination found Washington the defeandant an guilty practice unfair labor hospital ordered it to her and to offer her em- accept written application first for ployment department, job vacancy dietary which she had met the she standard applied, provided qualifications color, of other but without applicants employment, regard race, creed or national The district court origin. watered down the order made the board. On the district appeal court’s action was set aside on the that the ground judge trial was not authorized to judgment substitute his for that of the board and the board’s order was, An accordingly, argument reinstated. was made hospital that the board’s order violated sections state constituion but court declined appellate to consider this issue since it had not been raised in the trial court.

While we recognize that the federal Civil Act Rights provides effect that no employer shall be required grant preferential treat- ment individual or to racial any on or like group grounds, that we are of the the circumstances opinion surrounding the present it case within the aura of the authorities we bring just have cited. in discrim- engaged had Here, the Commission found Midland be drawn safely the inference believe inatory and we practices of a members were staff who no its office employees it had on resulting past imbalance remedy race. To such minority and to recruit actively Midland agreed discriminatory practices, This minority person. a qualified fill the next office vacancy through a found could would assume that such an applicant faith good effort. the framework

Construing contemplated within Commission, no further than goes requiring we believe recruit and hire faith a good qualified Midland actively to institute vacancy the next occurring minority person *11 to all offering employment promotion possibilities policy creed, race, sex, color or national in the future regardless persons offending this as “discrimination reverse” do not view origin. We in the area of civil federal, or enactments municipal state either rights. connection, (b) provides S. A. 1972 44-1009 Supp. K. this

In fill vacan- to practice not be an unlawful that: “It shall with respect or reduce imbalance as to eliminate way cies in such of the The tenor race, color, sex, ancestry.” or origin national to this provisions squarely accords agreement conciliation cases of the federal purview within the as well as being statute cited. we have dismissing trial corut by given reasons remaining

Two First, the court observed briefly. mentioned should be this lawsuit involving a breach a contract enforce generally will not that equity Contracts, on in Williston A found citation a third duty party. to We believe that proposition. support offered Ed., is 3d § situation. the present little application have rule would such into the benefit run usual contract we is not agreement This action is the a third- present brought by of a third Neither party. made agreement to enforce for his or her bene- beneficiary party Commission is empowered fit. Under the ordinance the to negotiate authority conciliation This exercised in the agreements. interest order public peace good community the safety welfare of the and all its general residents. We community the enforcement of agreement find such an impediment no by serves, in the best interests of the which it public Commission so held. and we if made

Finally, trial court said that “the agreement, for crime refraining consideration of prosecution preventing would be We rule agree general void as against policy.” obstruct, is that with the agreements or interfere tending impede Am. justice administration of contrary public policy. (17 Jur. it, 2d, Contracts, However, contract, as we see p. 563.) stigmatized containing any agreement impede, justice. obstruct or administration of Com- interfere mission being satisfactory its case as agreed to close simply adjustment of the Midland. subject complaint, performance It no Commission not a prosecutorial agency. possesses power undertake criminal Under the terms of the prosecution. Commission, ordinance shall if unable conciliate a complaint, notify the whether the is to be filed City Manager, complaint but court of law is to be determined either appropriate City Attorney subject Commission. The matter of this conciliation does not relate to interference with agreement law proper illegal enforcement and the is not on such a basis.

We remand this case with instructions to set aside the order of dismissal and to with trial of the action proceed agreeably with the expressed views in this and in accordance with opinion established procedures. this connection we note that the has filed defendant which, pleading as cross-claim and cross-claim styled third-party is still apparently, pending.

If, action, trial of the trial finds a breach of upon con- *12 tract committed by great Midland it should no experience difficulty in a decree Midland to recruit and fashioning requiring actively employ member to fill the next qualified minority succeeding in its vacancy office staff. means the two most recent Through this vacancies have occurred in the staff since the contract signed will have become filled members of by majority minority the basis, on one one a solution which we not groups believe will constitutional or rights offend civil requirements attending under circumstances.

It so ordered. is I J., dissenting: must dissent because in respectfully

Schroeder, rights of civil in has opinion, subject employment practices my been Kansas Act Dis- Against at by the state level preempted 44-1001, thereby et precluding crimination S. A. cities seq.), (K. local ordinances under enactment of the field entering by Amendment. Home Rule are matters of fair employment practices civil not local 44 of the matters of statewide and concern. Chapter in Kansas Statutes to labor and industries Kansas Annotated applies extensively that has entered by legislature discloses this state 1, employees; the field of labor. Article relates to of protection work; 3, 2, Article of hour on Article eight day payment committees; 4, offices, wages; agencies Article employment diseases; 5, 5a, Article s Article occupational workmen compensation; 7, 6, and industry; Article of labor Aricle regulation 9, relations; law; Article Article security employer employee Act Discrimination. boiler and Article inspection; from the constitution legislate now receive their Cities authority power The home rule rule). Cities’ of home (Article powers of consideration in subject was the of cities under constitution Walsh, 1130. in its 509 P. 2d While Kan. Claflin is given the reader one cites opinion quotes paragraph, Claflin absolute of cities is unless home rule power impression into an enactment language written legislature specifically on the field, action thereby part precluding which preempts in the opinion not construction a proper This city. Claflin. the court said: In Claflin power subject power It is “The rule cities is absolute. to the home exclusively in, legislature optionally some, to act certain others. areas — expressly power These on set forth rule limitations home amend- (a) provision ment. Section 5 the constitutional cited in full above vests power legislature regard procedure absolute and exclusive to the cities, boundaries, incorporating altering methods the methods which merged consolidated, may cities and the methods which cities Statutory subject enactments areas are not dissolved. these to the exercise power of home rule charter ordinance. powers optional “The (b) are set forth in Section 5 exceptions power by limitations or to the exercise home rule cities. The home power subject optional by legislative rule control action in four areas-. “(I) applicable Enactments statewide concern which are uniformly to

all cities. “(2) legislature applicable uniformly Other enactments of the to all cities. “(3) applicable uniformly Enactments to all cities of the same class

323 charge fee, other tax, excise, or levying limiting prohibiting of or the exaction. (p. of indebtedness.” legislature prescribing limits “(4) Enactments of the 7.) (Emphasis added.) requiring 12 of Article court, (d) Section discussing

The after cities granted authority liberal construction powers of self- measure the largest cities to purpose giving to went on in its opinion), the court government (quoted clear intention made legislative review cases where The court then said: unequivocal. legislative to have difficulty many intention “The is that in statutes the courts uniformity throughout expressly situation In that the state is not stated. required by applying rules statu- glean legislative are established intent intent, tory legislative are not courts construction. In order to ascertain the parts permitted part act but are only of an consider a certain isolated pari required parts materia. together thereof in all consider and construe according interpretation to the exact of an act When the of some one section purpose import the manifest literal of its words would contravene reason, spirit legislature, according to its construed the entire act should be (Gnadt disregarding necessary law. so far the strict letter Durr, pari 1219.) addition, materia in Kan. 494 P. 2d relating Statutes statutes not at the same time. need have been enacted times, pari subject, although materia same enacted at different Marshall, together. (Flowers, Adminis- Administratrix v. should be construed trator, 1184.) 494 P. 2d relating require of construction us to consider all statutes “These rules together determining legislative subject should intent. We follow same determining legislature a statute

these rules in intended have whether ‘uniformly (Emphasis' added.) applied (p. 8.) to all cities/” On the then must look to Kansas Act authority we Claflin in- Discrimination to ascertain Against whether tended the field. to preempt

The ordinance of the of Hutchinson here in is an question ordinance to a “civil commission” and ordinary provide within legislate upon employment practices city. Even by charter ordinance the could set aside State’s Civil Laws and such a charter Rights pass ordinance. Kansas Act Discrimination S. A. (K. Sup-p. 44-1001) describes reprehensible conduct employment relations these words: against “. . This act . shall be known as the Kansas act distrimination. police power protec- It shall be deemed an exercise the state public welfare, safety, peace people tion health and this state. practice policy against of discrimination individuals in relations, housing relation free and accommodations or in *14 ancestry origin matter color, sex, is a race, religion, or national reason of of rights only the state, threatens concern to the since such the insti- but menaces privileges of Kansas inhabitants of state and hereby declared to It is state. of a free democratic and foundations tutions prevent all discrimination in and policy to eliminate the state Kansas of of discrimination, segregation, or relations, prevent to and eliminate act, by public and to places this separation accommodations covered in all of housing. separation discrimination, segregation prevent in or eliminate and equal opportunities policy this state to assure to "It is also declared of sex, color, race, religion, every regardless na- encouragement and to citizen of discrimination, ancestry, securing em- origin holding, without in and tional or properly qualfied, any ployment which he is work or labor to for of field equal equal opportunties persons to full and to all within this state assure housing equal opportunities accommodations, public without and to assure color, sex, origin ancestry. race, religion, or of national distinction on account employment, opportunity and to hold that the secure It is further declared equal public opportunity as this full accommodations covered for and housing rights every equal opportunity are civil for full and act and the of citizen. hereby purpose protect rights, declared to be the this act "To these of having power provide and a state commission eliminate to establish and separation employment, prevent segregation discrimination, and or in all places public act, housing of covered this and accommodations because sex, ancestry, race, religion, color, origin employers, or national either organizations, employment agencies, realtors, labor financial institutions or other provided.” (Emphasis added.) persons as hereinafter 44-1004, Under the of K. S. A. 1972 provisions Supp. the commission on civil Act Discrimination creates grants and statewide-. [Ffunctions, powers and “. . . duties: principal Topeka, “(1) and its office in the To establish maintain may necessary. the state as it deem

and such other elsewhere within offices any place “(2) within the state. To meet and at function “(3) adopt, promulgate, regulations rescind and To amend and suitable rules carry provisions act, policies practices out the of this and the commission in therewith. connection receive, initiate, investigate, pass upon complaints “(4) alleging To employment, public housing discrimination in accommodations and because of race, religion, color, sex, origin ancestry. or national subpoena witnesses, compel “(5) appearance, require produc- To their records, possible tion examination other evidence or documents for sources evidence . . . “(6) any To include term in a conciliation as could be included in a final order under this act. “(7) apply county respondent To to the district court of the where the any agreement by or transacts resides business enforcement of conciliation seeking performance agreement. specific of such hearing may remedy “(8) To issue such orders final after prevent existing recurrence. act and its situation violate this found e « # # at “(10) councils, local, advisory agencies create To such conciliation regional, effectuating purpose statewide, judgment or as in will aid act, study problem all or fields of discrimination in origin color, sex, race, religion, instances discrimination because national ancestry; through community otherwise, good will, foster, co- effort or operation among population groups and conciliation and elements state, develop- of this and to make for the recommendations to the commission policies procedures, ment programs of formal and informal education, appropriate which the commission recommend state *15 agency. agencies advisory composed Such and conciliation counils shall be of representative serving pay. may citizens without The commission itself make perform the studies paragraph. may, and the acts authorized this It voluntary parties interest, conferences with in endeavor conciliation and persuasion good to eliminate in discrimination all the stated and to foster fields cooperation among will and population all elements of the of the state.” {Emphasis added.)

From the foregoing it is apparent the state has the commission duty to create such advisory agencies and conciliation at councils the local levels our government as in its will aid judgment of effectuating the of purposes the act. if at Therefore a local agency Hutchinson in the judgment of the state aid commission would effectuating of it purposes the act set would (heretofore out), have the duty Hutchinson, create such in the agency City of an arm commission, the state to serve as an and advisory agency conciliation council. act

The supplementing Against the Kansas Act Discrimination (Laws Chapter 193) concerning housing “discriminatory ordinances practices” housing, refers fair protect it the commission on permits civil local rights cooperate agencies. These A. housing sections now as K. S. 1972 appear fair however, Supp. 44-1024 and 44-1025. Nothing appears, Kansas Act Discrimination as it to discrimination applies in employment practices (K. S. A. 1972 44-1001 K. S. A. Supp. about Supp. 44-1013) with local “fair cooperation employ- ment agencies.” advisable, Had legislature it would thought have included references to agencies” ‘local fair but employment chose in 44-1004 lánguage supra, instead (10), to create local matters. agencies employment advisory fair retained for the Kansas Commission on Civil legislature thereby issues Rights jurisdiction exclusive statewide relations, local at the level. even exclusion” implied mention the doctrine of “express Under Discrimination Act Against Kansas interpretation rational fair employment uniformity protection statewide gives LeSueur, P. 2d 817 LeSueur practices. said: court authority implies discretionary exclu- direct mention . The “. . general in 82 authority. is thus stated rule implied other sion of 333a, p. Statutes, S., 668: C. J. “ exclusion, implied express mention general rule ‘Under mentioned; similar matters other excludes express of one matter mention against everything implication contains

every positive an direction in statute classes; particular all other class excludes contrary it; specification of one granted implies nonde- powers a denial description affirmative 500.) (p. powers. .’” scribed . . are no opinion relies cases which upon .Liquor the state. uniform throughout are not problems help because establish- the proximity of the population, The makeup military size ments, community pose special liquor prob- of a even lems. to the of a com- civil relations

Employment applicable problems remain constant. The fairly munities’ citizens Wichita, Hutchinson, Topeka, other same for need for cities in Kansas. This sameness uniformity *16 decision and state interpretation throughout results from congressional United States Constituion and directives which spell precepts out the basic for universal and in fair equality play 42 U. S. C. 2000e-8 (b) employment. co- (1964) provides for operation between federal and agencies. state

The Kansas Act Discrimination expresses policy the state “to eliminate and prevent discrimination in all employ- ment S. relations” A. (K. Supp. 44-1001) “to assure equal opportunities and encouragement citizen every regardless of race, color, sex, religion, national origin ancestry, in seeming and holding, discrimination, without in employment field of any 'work or labor for which properly he is To qualified.” accomplish purposes the act it provides “a state commission having power eliminate prevent segregation discrimination, or separa- tion in The employment.” Kansas Act Against Discrimination ex- tends protected rights to fair play constitutionally equality

327. employ- the state. every part uniformly to exclu- field to the the entire ment act occupies relations sion of the ordinance. must identify one

To determine a conflict exists whether uni- for statewide the need evaluate such considerations policy in autonomy, interest formity, strength municipal the ordinance causes the extent which interference enforcement of state enactment. legislative division, the Kansas administering The employment security A. et under federal seq.) S. 44-701 Employment Security (K. Law with different direction, comply and state required would in each local office area. Such interpretations job situations ordinance, here, have would be a hin- municipal rights civil as we drance and would interfere of the statute. enforcement In this connection situation in City see factual presented Hutchinson, Service, Hutchinson v. State Employment Office of There, 517 P. 2d 117. for the fact except the wrong sued, the Hutchinson Human Relations parties were Commission the Kansas acting through bring seeks State city Service, knees, a state Employment to its situation agency, which tail seeks to wag dog.

Furthermore, questions jurisdiction concurrent would make for prolific The litigation. City Human Relations Hutchinson’s Commission is not equipped carry local civil matters to final conclusion. The local method of ordinance enforcing the would interfere substantially with state enforcement the Kansas Act Against Discrimination.

By permitting the Hutchinson ordinance to stand it is given extraterritorial impact, subjecting state and federal governments employment relations to control. municipal city ordinance may said conflict with the statutory itself. language city ordinance is also in conflict with the statute because the statute the entire occupies field. The ordinance is in conflict with' the statute because it is not as strict. The city human relations com- mission find violation, a civil rights it cannot yet itself correct the violation.

The Supreme Court of the State of Nebraska has held in Mid west Council, Employers Omaha, Inc. v. Neb. *17 N. 2d W. that matters of fair employment practices and civil rights are matters of statewide and not of local concern. 1973 session 223 introduced

Senate Bill No. and, passed, if would civil relating rights, act Legislature com- human relations municipal to establish cities have authorized thereof.” duties and functions missions, the powers, “prescribing of the legis- the 1973 session into law This bill not enacted that the does It from the bill lature. is apparent authorizing Act Discrimination construe the Kansas relations com- cities of local human municipal establishment relations. administer civil missions to It the brief amicus attorney general joined is noted curiae of the Kansas Commission on Civil The National Rights, for the People, Association Advancement of Colored The American Forum and G. I. The Kansas Human Relations Association. All of these have urged uphold court to constitutionality Commissioner, Hutchinson ordinance. The State Labor Darrell D. Carlton, amicus has filed brief curiae the court strike urging down the Hutchinson ordinance as unconstitutional.

It is respectfully submitted the judgment of lower should be affirmed.

Fatzer, C. J., joins foregoing opinion. dissenting