Opinion
No. 42,535
Opinion filed April 11, 1964.
SYLLABUS BY THE COURT
WATERS — Water Appropriation Act — Validity. In an appeal challenging the constitutionality of the 1945 Water Appropriation Act of Kansas (G.S. 1949, 82a-701, et seq., as amended), the record is examined, and it is held, (1) as 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), such act is constitutional and (2) the trial court erred in its judgment holding the act to be unconstitutional.
Appeal from Harvey district court; GEORGE L. ALLISON, judge. Opinion filed April 11, 1964. Reversed.
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
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 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.