State ex rel. Burnett v. City of Hutchinson

[357] The opinion of the court was delivered by Marshall, J.: In case No. 23,292, The State, ex rel., v. City of Hutchinson, 109 Kan. 484, an opinion was filed July 9, 1921. A rehearing was granted, and No. 23,292 is now disposed of on rehearing. 1. The statement of facts contained in the former opinion is correct, but this additional statement should be made. Ordinance No. 1,378 attempted to include within the city limits all that part of the northwest quarter of section 17 in township 23 south of range 5 west in Reno county, lying south of the right of way of the Atchison, Topeka & Santa Fe Railway Company. The city limits had previously been extended so as to include all that part of the northwest quarter of that section lying north of that right of way. The right of way had not been annexed to the city limits previous to the passage of ordinance No. 1,378. The court is of the opinion that the failure to include the right of way of the Santa Fe Railway Company within the city limits by ordinance No. 1,378 did not invalidate that ordinance. With this addition, the former opinion of this court is approved, and the judgment there rendered is adhered to. 2. After judgment was rendered in the district court from which the appeal in. No. 23,292 was taken, the city passed ordinance No. 1,442, by which the city attempted to annex all that part of the northwest quarter of section 17 in township 23 south of range 5 west lying south of the north line of the right of way of the Atchison, Topeka & Santa Fe Railway Company and all of the southwest quarter of section 17 in township 23 south of range 5 west in Reno county. The plaintiff then commenced this action, No. 23,564, one in quo warranto, and asked that the defendant be ousted from exercising municipal powers over the territory described. The action was tried, judgment was rendered in 'favor of the defendant, and the plaintiff appeals. The only difference between the two actions is' that by ordinance No. 1,378 the defendant did not include the right of way of 'the Atchison, Topeka & Santa Fe Railway Company within the limits of the city, and by the ordinance No. 1,442, that right of way is included. The opinion in No. 23,292, The State, ex rel., v. City of Hutchinson, 109 Kan. 484, is controlling and compels an affirmance of the judgment in case No. 23,564. The judgment is affirmed.