City of Hesston v. Smrha

192 Kan. 647 (1964)

391 P.2d 93

CITIES OF HESSTON and SEDGWICK, and HARVEY HENSLEY, CITIES OF BURRTON and HALSTEAD, and the CITY OF NEWTON, KANSAS, Appellees, v. R.V. SMRHA, Chief Engineer, Division of Water Resources, Kansas State Board of Agriculture, and THE CITY OF WICHITA, KANSAS, Appellants.

No. 42,535

Supreme Court of Kansas.

Opinion filed April 11, 1964.

Warden L. Noe, special assistant attorney general, argued the cause, and William M. Ferguson, attorney general, and Robert E. Hoffman, assistant attorney general, were with him on the briefs for the appellant, R.V. Smrha, chief engineer.

John Dekker, of Wichita, argued the cause, and Fred W. Aley, Robert B. Morton, and Paul Donaldson, all of Wichita, and J. Rodney Stone, of Newton, were with him on the briefs for the appellant, city of Wichita.

Kenneth G. Speir, of Newton, argued the cause, and Vernon A. Stroberg, Herbert H. Sizemore, and Richard F. Hrdlicka, all of Newton, were with him on the briefs for the appellees, cities of Hesston and Sedgwick, Ruby K. Hensley, and Maurita Jean Sooter.

Arthur N. Turner, of Newton, was on the briefs for the appellees, cities of Newton and Halstead.

John W. Plummer, of Newton, was on the briefs for the appellee, city of Burrton.

The opinion of the court was delivered by

ROBB, J.:

This is an appeal by defendants below from orders entered by the trial court on July 13, 1959, January 3, 1961, and January 4, 1961, but it has been admitted by the parties that the judgment entered on January 4, 1961, wherein the 1945 Water Appropriation Act of Kansas (G.S. 1949, 82a-701, et seq., as amended) was held to be in violation of the federal and state constitutions, and the orders of the court dated January 5, 1961, overruling defendants' motions for new trial, are the controlling *648 and decisive issues in this appeal notwithstanding the fact sixteen trial errors were alleged and the appeal is based on nineteen specifications of error. This case has been before this court on four previous occasions. (Cities of Hesston & Sedgwick v. Smrha, 179 Kan. 72, 293 P.2d 241; City of Hesston v. Smrha, 184 Kan. 223, 336 P.2d 428; City of Hesston v. Smrha, 186 Kan. 477, 351 P.2d 204; Cities of Hesston & Sedgwick v. Smrha, 186 Kan. 785, 352 P.2d 1053.)

The parties stipulated the only question on appeal is whether the above-mentioned act is constitutional under both our federal and state constitutions. It is further contended by appellants, the chief engineer, and the city of Wichita, that the same question was determined in Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (app. dis. 375 U.S. 7, 84 S. Ct. 46, 11 L. Ed. 2d 38, pet. for rehearing denied, 375 U.S. 936, 84 S. Ct. 328, 11 L.ed.2d 267), where the act was held to be constitutional, and appellees also recognize the question was answered in the Williams case. The only further argument propounded by the appellees is that the Williams decision is erroneous and should be overruled.

Reference is hereby made to the opinion in the Williams case for a full disclosure of facts and a complete discussion of all the authorities, which need not be reiterated herein.

The judgment of the trial court is reversed.

SCHROEDER, J., dissents.

FONTRON, J., not participating.