The opinion of the court was delivered by
This civil action for an injunction comes before the court upon
rehearing. Pursuant to an order issued January 30, 1990, we
withdrew our previous opinion in Blevins v. Hiebert,
245 Kan. 646, 783 P.2d 1260 (1989), and granted rehearing to examine
further the full scope of our decision. Blevins appeals a
district court order granting summary judgment to the Board of
County Commissioners of Douglas County and denying an injunction.
The facts of this case have been fully set forth in Blevins v.
Hiebert, 13 Kan. App. 2d 318, 770 P.2d 486 (1989). Due to the
complexity of the case, however, the facts are here presented
again in some detail.
On June 8, 1985, the Lawrence Journal World newspaper reported
that the Douglas County Commissioners were considering a bond
issue to help construct a by-pass highway south of Lawrence.
County consultants publicly stated only $1,010,000 of the
$4,000,000 needed in general obligation bonds for the by-pass
could be issued without a mandatory vote of Douglas County
voters. Subsequently, the Kansas Attorney General issued an
opinion at the request of the County, which stated that the
County plan to issue general obligation bonds for construction of
the by-pass without a public vote was permissible under its home
Thereafter, the Douglas County Board of County Commissioners
adopted several ordinary resolutions on August 14, 1985, through
use of its home rule powers. Resolutions No. HR 85-8-2
and No. 85-41 authorized construction of the highway
system and the issuance of general obligation bonds to finance the
highway. Resolution No. 85-43 authorized the issuance of
$12,595,000 in General Obligation Refunding and Improvement Bonds,
Series 1985, to refund the County's bonded debt and to pay for certain
public improvements within the County, including $4,000,000 for
construction of the by-pass highway. The bonds were issued and
the transaction closed on August 29, 1985. In 1986, the 1985
bonds were refunded and construction for the trafficway
refinanced by the issuance of $13,590,000 in General Obligation
Refunding and Improvement Bonds, Series 1986. Douglas County and
the City of Lawrence adopted a joint resolution on September 1,
1987, concerning the construction of the South Lawrence
Leslie W. Blevins, Sr., a resident of Douglas County and
property owner in the City of Lawrence, filed a lawsuit against
Douglas County, the City of Lawrence, and individual members of
their commissions on August 28, 1987. He asked for temporary
restraining orders and for permanent injunctions preventing the
City and County from proceeding with the South Lawrence
Trafficway without submitting the proposal to a vote.
Specifically, he asked that the County be restrained from
spending the money from the bonds it had issued for the by-pass
construction and that the City be restrained from taking steps to
issue general obligation bonds for its share of the by-pass costs
without submitting the issuance of the bonds for voter approval.
Douglas County filed a motion for summary judgment, and the
City of Lawrence filed a motion to dismiss. The district court
granted the City's motion to dismiss on February 4, 1988. The
court found that Blevins had standing to sue and ruled that
Douglas County issued the general obligation bonds properly under
its home rule authority. Furthermore, the district court
determined that Blevins' claim was barred by the doctrine of
On February 16, 1988, Blevins filed a motion for a new trial,
to alter or amend the judgment, and for reconsideration. This
motion alleged that conflict of interest grounds existed which
should have prevented the County from asserting the equitable
defense of laches, and Blevins requested that the laches decision
be amended. The district court denied Blevins' motion on April
28, 1988. Blevins appealed the district court's judgment and
denial of his post-trial motion.
The Court of Appeals held the County legally issued the general
obligation bonds under its ordinary home rule powers pursuant to
K.S.A. 19-101a. Blevins v. Hiebert, 13 Kan. App. 2d at 321. The
court found that K.S.A. 68-580 et seq. is a permissive statute
and not the only method available for the County to authorize
construction of a highway. 13 Kan. App. 2d at 320-21. On the issue
of the dismissal of the City of Lawrence, the court found that
the issue had not been briefed on appeal and was therefore waived
or abandoned. 13 Kan. App. 2d at 322. The Court of Appeals found
no abuse of discretion by the district court in its finding that
Blevins' claim was barred by laches, nor did it find an abuse of
discretion by the district court in denying Blevins' post-trial
motions attacking the laches determination. 13 Kan. App. 2d at
322-23. We granted review.
In this case the parties agree that the Dillon rule of
municipal law (see State, ex rel., v. City of Topeka,
175 Kan. 488, Syl. ¶ 2, 264 P.2d 901 ) was abolished by home rule.
Thus, municipalities were freed from dependence upon the state
legislature for local legislation. See Claflin v. Walsh,
212 Kan. 1, 6-7, 590 P.2d 1130 (1973); Missouri Pacific Railroad v.
Board of Greeley County Comm'rs., 231 Kan. 225, 643 P.2d 188
(1982) (county home rule powers). The parties also concede that
legislative silence on a subject no longer prevents local
government action. There is also accord on the principle that
home rule is available to cities and counties in all areas of
local government in which it is not prohibited by Article 12, § 5
of the Kansas Constitution or by K.S.A. 19-101a. Home rule is
prohibited, however, where there is a statute uniformly
applicable to all cities or counties, as the case may be.
Home rule is applicable in two other areas. The first is in the
area of regulation and prohibition, where local government
exercises its police power for the health, safety, and general
welfare of the public. Local regulatory legislation is a special
area of law governed by different rules than home rule; its
origins precede both Article 12, § 5 of the Kansas Constitution
and K.S.A. 19-101a.
The final area of the law available for home rule is where a
statute is nonuniformly applicable to all cities or counties or
to specific cities or counties. A municipality may opt out of
such a law only by charter ordinance or charter resolution.
Charter ordinances and resolutions are subject to petition and
referendum. This affects the desirability of their use by
Let us first discuss home rule in police power ...