Petition for a Writ of Certiorari — Stafos v. Jarvis

Supreme Court brief1973

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9” BILE COPY

JUL 10 1973

MICHAEL RODAK, JR.,.CL

In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 423°9 3 :

JAMES GEORGE STAFOS,

Bankrupt-Petitioner,

VS.

LAURENCE M. JARVIS, Trustee in Bankruptcy,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WasH H. Brown

THOMAS E. JOYCE

428 Brotherhood Building

Kansas City, Kansas 66101

Attorneys for Petitioner

E. L. MenDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, 421-8080

FB nae hat

INDEX

IIR TIT iresntennicetsnercieeennenenensnenernemamnincmennnstinencanetons

Jurisdiction

Questions Presented

PIE sidan piaaensicbediedibtaiainnenaieiee

Statement of the Case, including Citations to the Con-

stitution of Kansas and the Decisions of the Supreme

Court of Kansas

Federal Cases Construing the Homestead Exemption

under the Kansas Constitution and the Oklahoma

Constitution which is similar thereto regarding

homesteads .....

The Decision of the Court of Appeals was clearly er-

roneous in the application of the Kansas Constitu-

tional Homestead provision and the application of the

14th Amendment of the Federal Constitution to the

facts and property rights of petitioner -..........0.0000......

(RE Fee Saupe Ps ran 2 henner neta SD ae ES ae

APPENDIX

Opinion of United States Court of Appeals, Tenth Cir-

cuit, Rendered April 30, 1973

Petition for Rehearing

Order Overruling Petition for Rehearing

Letter from Clerk of Court of Appeals, Tenth Circuit

to Clerk of U. S. District Court with copy to counsel

dated June 8, 1973 transmitting copy of Judgment

and copy of Opinion of Court of Appeals which con-

stitute the Mandate ..................eeee-

Al0

Al6

Judgment of Court of Appeals dated April 30, 1973,

Filed June 8, 1973 by Clerk of District Court ............ Al7

Memorandum Opinion of Honorable Earl E. O’Connor,

Judge of the United States District Court for the Dis-

I ae I ics vececestercncbsisiaicniatbcsinsotapacsnenbubicipiimineneiiinmtaiteine Al8

Ordinance No. 45492 of The City of Kansas City, Kan-

sas annexing petitioner’s truck farm together with

other tracts of land enacted March 1, 1966 ................ A21

Stipulation .........-....-c-cscscsssensesceosnsesesesesesenenssenonsoseses A22

Article 15, Section 9, Kansas Constitution A23

Section 60-2301—Kansas Statutes Annotated ................ A23

Section 13-1602a—Kansas Statutes Annotated .............. A24

Section 12-501—Kansas Statutes Annotated ...........00....... A26

Section 12-502—Kansas Statutes Annotated .................... A26

Section 12-502a—Kansas Statutes Annotated .................. A27

Cases CITED

Babcock v. Kansas City, Kansas, 197 Kan. 610, 419

P.2d 883 10, 11

Bigley v. Jones, Collector of Internal Revenue, 64 F.

Supp. 389 (D.C., Okla.) 13

In Re Estate of Dittemore, 152 Kan. 574, 106 P.2d 1056,

lic. 577 7

Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P.2d

276 10

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, l.c. 1997,

32 L.Ed.2d 556, 93 S.Ct. 180 7, 18, 19

Grant, Trustee in Bankruptcy v. Mossman, 384 F.2d 496 9

Hammon v. Sommer, 10 F. 601 (C.C. Kan., 1882) ... 14

Jones v. Kemp, et al., 144 F.2d 478 oo.o.ccececccecceceeeeeeeeeeee 13

III

Kaiser Steel Co. v. W. H. Ranch Co., 391 U.S. 593, 88

fe Sp RG RRR Caa olen eee 6-7

Lampe v. City of Leawood, 170 Kan. 251, 225 P.2d 73... 13

MacMullen v. South Carolina Electric and Gas Co.,

(C.A. So. Car., 1963) 312 F.2d 662, certiorari denied,

83 S.Ct. 1302, 373 U.S. 912, 10 L.Ed.2d 413 —.....0....... 17

Manning v. M/V, (C.A. Fla., 1969) 417 F.2d 608 ........ 17

Sarahas v. Fenlon, 5 Kan. 592 22.2.2... eecccccceeceecesseeecconee 9,10

State ex rel. Hawkes County Attorney v. The City

of Topeka, 172 Kan. 745, 243 P.2d 218 12

State ex rel. Hugh H. Kreamer, County Attorney v.

City of Overland Park, Kansas, 192 Kan. 654, 391

SEE HUE sscscnnsatsenthsicscnnensini vices Sietoebonsseamiapaenidantonianaliainaied 12-13

State v. Mitchell, 194 Kan. 463, 399 P.2d 556, l.c. 465-466 8

Towle v. Towle, 81 Kan. 675, 107 P. 228, l.c. 680 ........ 8

U. S. v. Hersberger, 338 F.2d 804 (D.C. Kan. 1972) .... 14

U.S. v. Mississippi Valley Generating Co., 81 S.Ct. 294,

297, 364 U.S. 520, 526, 5 L.Ed.2d 268 17

U. S. v. U. S. Gypsum Co., 68 S.Ct. 525, 333 U.S. 364,

92 L.Ed. 92, rehearing denied, 68 S.Ct. 788, 333 U.S.

869, 92 L.Ed. 1147 16

U. S. v. Wholesale Oil Co., (10th Cir., 1946) 154 F.2d

745 17

West v. Grove, 139 Kan. 361, l.c. 363, 31 P.2d 10, lc.

364-366 8

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In the Supreme Court of the United States

OCTOBER TERM, 1973

No.

JAMES GEORGE STAFOS,

Bankrupt-Petitioner,

vs.

LAURENCE M. JARVIS, Trustee in Bankruptcy,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioner, James George Stafos, bankrupt, prays that

a writ of certiorari issued to review the judgment and

opinion of the United States Court of Appeals for the

Tenth Circuit, which opinion was handed down April 30th,

and the order of said Court overruling bankrupt’s petition

for rehearing was denied June 8, 1973.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet re-

ported, it appears in the appendix to this Petition at pages

Al-Al0. The petition for rehearing was denied June

8, 1973, and appears in the appendix at pages A10-A15,

The order denying the petition for rehearing appears in

the appendix commencing at page Al6. The opinion of

the Referee in Bankruptcy is shown in the record on ap-

peal to the Tenth Circuit (hereinafter referred to as Rec-

ord on Appeal) at pages 7 to 29. The Memorandum

Opinion cf Honorable Ear] E. O’Connor, Judge of the Dis-

trict Court for the District of Kansas, affirming the de-

cision of the Referee in Bankruptcy is shown at pages A18-

A21 of the appendix and at page 45 of the Record on

Appeal. The motion to vacate the judgment of the District

Court and apply the abstention doctrine is shown at page

50 of the Record on Appeal. The ordinance extending the

City limits of Kansas City, Kansas, which included and

took into the corporate limits of the City of Kansas City,

Kansas, bankrupt’s 13.2 acre truck farm, is shown at

pages A21-A22 of the appendix. The stipulation be-

tween petitioner and the Trustee in Bankruptcy as to the

bankrupt’s homestead rights in his truck farm is shown in

the appendix at page A22.

JURISDICTION

The opinion of the Court of Appeals was rendered

April 30, 1973, and the petition for rehearing was denied

May 31, 1973. The order denying the petition for rehear-

ing was transmitted to counsel, and the Clerk of the Trial

Court on June 8, 1973, together with a letter of transmittal.

The order overruling the motion for rehearing and letter

are shown in the appendix of this brief at pages A16-A17.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1) and 11 U.S.C. 47.

QUESTIONS PRESENTED

The questions presented in this petition are:

1. Whether the City Ordinance passed without notice

of any kind to bankrupt or opportunity to be heard enacted

by the Board of Commissioners of the City of Kansas City,

Kansas, March 1, 1966, extending the boundaries of the

City (Appendix page A21), deprived petitioner of his

vested interest in the 13.2 acre truck farm owned by bank-

rupt and his wife as joint tenants with the right of survivor-

ship and not as tenants in common, without due process

of law in violation of the 14th Amendment to the Con-

stitution of the United States, for under the judgment of

the Trustee in Bankruptcy affirmed by the District Court

and the Court of Appeals, Tenth Circuit, the passage of

the City Ordinance hereinabove referred to without notice

or opportunity to be heard reduced petitioner’s homestead

rights in said truck farm from 13.2 acres to one acre. In

other words, the judgment of the Court took all of the

farming land away from bankrupt, leaving him only his

residence on one acre, depriving bankrupt of the means by

which he earned his livelihood from his homestead.

2. Whether the Trial Court as requested in the mo-

tion of bankrupt should have applied the abstention doc-

trine in the absence of a decision of the Supreme Court of

Kansas as to whether the passage of a City Ordinance

without notice annexing a farming homestead of more

than one acre of land reduced the farming homestead right

to one acre of land and, therefore, petitioner submits the

Trial Court should have instructed the Trustee to file an

action in the State Court to determine whether or not the

passage of a City Ordinance extending the boundaries of

a city automatically alienated and reduced the bankrupt’s

farming homestead under Article 15, Section 9, of the Kan-

sas Censtitution, to one acre of land, for the Constitution of

the State of Kansas provides and the Supreme Court of the

State has consistently ruled that once a homestead has

been established that it remains a homestead until such

time as it is either abandoned as such or alienated by the

joint consent of both husband and wife where that relation

exists; and furthermore the Supreme Court of the State has

held that the legislature of the State of Kansas is without

power to enact any law restricting any rights guaranteed

by the Constitution of the State. The legislature therefore

in enacting 13-1602(a) c* Kansas Statutes Annotated (the

statute under which the annexation was had in this cause),

if the same is valid, accomplished the reduction to one acre

of a farming homestead indirectly which it could not ac-

complish directly thus circumventing the intent of the

homestead exemption in the Constitution of Kansas.

3. Whether or not the passage of the City Ordinance

annexing bankrupt’s homestead and other lands to the

City without notice of any kind, without a chance to be

heard, and with no redress whatsoever, violated petition-

er’s right to due process under the 14th Amendment of the

Constitution of the United States?

STATUTES INVOLVED

1. The 14th Amendment of the Constitution of the

United States.

2. Section 6, of the Bankruptcy Act (11 U.S.C. 24),

provides that a bankrupt’s property shall be exempt to him

as prescribed by the laws of the United States or by state

laws.

3. Article 15, Section 9, of the Kansas Constitution

provides for a hcmestead exemption. (This section is set

forth in the appendix at page A23), and Section 60-2301

Kansas Statutes Annotated (Appendix pages A23-A24), the

statutory provision for homestead, which makes the same

provision as the Constitution of Kansas.

4, 12-501, 12-502, and 12-502a, Kansas Statutes Anno-

tated, are set forth in the appendix commencing at page

A26, these statutes provide for annexation of lands to a

City by the extension of the boundaries thereof and pro-

vide for notice, but these statutes were not used by the

City and are shown in the appendix commencing at page

A26, for the purpose of informing the Court that if the

City chose to use these statutes the bankrupt would have

received notice and an opportunity to object to the an-

nexation of his farm.

5. 13-1602(a) Kansas Statutes Annotated which does

not provide for notice to the landowners of an extension

of the City boundaries is set forth in the appendix at page

A24, is the statute used by the City to annex petitioner’s

land.

STATEMENT OF THE CASE

The homestead claimed exempt by petitioner under

the Kansas Constitution involved in this case consists of

a 13.2 acre truck farm in Wyandotte County, Kansas, on

which bankrupt’s residence is located. (Truck farming

consists of raising vegetables of all kinds and planting

another crop immediately after crop is harvested so that

as many as three (3) crops may be raised in a season.)

The truck farm was purchased by petitioner, James George

Stafos, and his wife, Reva Stafos, as joint tenants with

the right of survivorship and not as tenants in common,

in 1945. (Reva Stafos is not a party to the bankruptcy

proceeding.) The farm was then approximately four (4)

miles West of the City limits of Kansas City, Kansas.

Petitioner and his wife have continuously farmed the same

since 1945 to date. The Ordinance annexing the farm

homestead was passed March 1, 1966. The Ordinance an-

nexed many other tracts and parcels of land other than

that of bankrupt and his wife.

On December 29, 1970, petitioner, James George Stafos,

filed his petition in voluntary bankruptcy and was adjudi-

cated bankrupt. In his schedule, he claimed his truck farm

as exempt as a homestead under Article 15, Section 9,

of the Kansas Constitution and 60-2301 of Kansas Statutes

Annotated. Respondent, Trustee in Bankruptcy, disal-

lowed the homestead exemption and claimed title as

Trustee to all of the Petitioner-Bankrupt’s interest in the

farm except one (1) acre which must include the residence

of petitioner. Petitioner filed timely objections to the

disallowance made by the Trustee; these objections were

heard by Honorable Milton J. Sullivant, Referee in Bank-

ruptcy, and disallowed except as to one (1) acre (Record

on Appeal, page 7). Bankrupt-petitioner then filed his

petition for review by the Court of the order of the Referee

(Record on Appeal, page 30), and the Court affirmed the

decision of the Referee in Bankruptcy (Record on Appeal,

page 45). Thereafter bankrupt-petitioner filed his motion

to modify the order of the Court (Record on Appeal,

page 47) and his motion to vacate the judgment and re-

quested the Court to apply the abstention doctrine and

instruct the Trustee to file a declaratory judgment in the

State Court as to whether or not the truck farm was

exempt under the Constitution and laws of Kansas, citing

Kaiser Steel Co. v. W. H. Ranch Co., 391 U.S. 593, 88

S.Ct. 1753, 20 L.Ed.2d 835, and the cases cited in the

note on the Law of Abstention in 20 L.Ed.2d 1623, both

motions were overruled with the exception of Finding

Number Ten and the Court’s Memorandum Opinion was

vacated and a new Finding Number Ten was inserted

to the effect that bankrupt’s land except that portion oc-

cupied by improvements has been farmed by bankrupt

ever since it was purchased and is now being farmed

and that the type of farming conducted by bankrupt there-

on is what is known as truck farming (Record on Appeal,

page 52). The bankrupt contends that the ruling of the

Trial Court deprived him of his homestead rights in his

13.2 acre farm (except one acre on which he resided),

without due process of law in violation of the 14th Amend-

ment, and contrary to Article 15, Section 9, of the Kansas

Constitution. Citing Fuentes v. Shevin, 407 U.S. 67, 92

S.Ct. 1983, Le. 1997, 32 L.Ed.2d 556, wherein this Court

said that the 14th Amendment's protection of “property”,

however, has never been interpreted to safeguard only

the rights of undisputed ownership. Rather it has been

read broadly to extend protection to “any significant prop-

erty interest”, and petitioner contends that he had a signifi-

cant interest in his truck farm together with his wife

who was not a party to this proceeding or to the bank-

ruptey proceeding and that the type of property interest

vested in petitioner and his wife has been repeatedly recog-

nized by the Supreme Court of Kansas, the Tenth Circuit

Court of Appeals and the United States District Court

for the District of Kansas.

The Supreme Court of Kansas held, In re Estate of

Dittemore, 152 Kan. 574, at 1.c. 577, 106 P.2d 1056, that where

the homestead character has once attached to the residence

of a family group it will continue so long as one of its

members reside therein although deaths or separations

may reduce the remainder to a single member.

The Supreme Court of Kansas in West v. Grove, 139

Kan. 361, lc. 363, 31 P.2d 10, said that anything that

the legislature might see fit to enact or did enact could

in no way limit the constitutional provisions with respect

to a homestead and, at l.c. 364 to 366 the Court discussed

the purpose of the homestead exemption and at l.c. 366

it said: “The manner in which the homestead may be

alienated is expressly stated, as are the circumstances

against which the homestead right shall not prevail. It

has been the settled course of the decisions of this Court

to construe liberally the homestead provision and not to

restrict it. The legislature lacks power to limit the provi-

sion (homestead exemption) .. .”

In Towle v. Towle, 81 Kan. 675, 107 P. 228, at Le.

680, the Court said: “the power of the legislature over

the homestead right is limited only by the Federal and

State Constitutions.”

In State v. Mitchell, 194 Kan. 463, 399 P.2d 556, the

State attempted to padlock a homestead for a violation

of the intoxicating liquor law therein. The Court held

that to padlock the homestead would be alienation and

in this connection defined alienation as follows: “alienated

as used in the State Constitution (Article 15, Section 9),

means a parting with or surrendering of some interest

in the homestead”, and further said that possession of

the homestead constituted an interest therein, and at l.c.

465 the Court said: “It, ‘the homestead’ was not estab-

lished for the benefit of the husband alone but for the

benefit of the family and of society—to protect the family

from destitution, and society from the danger of her citizens

becoming paupers”.

At l.c. 466 the Court further said: “It suffices to

say that Kansas has zealously protected the family rights

in homestead property by liberally construing the home-

stead provision in order to safeguard its humanitarian

and sound social and economic purposes; and nothing less

than the free consent of the resident owner of the home-

stead, and joint consent of husband and wife where that

relation exists, will suffice to alienate the homestead, ex-

cept under the specified exceptions provided in the Con-

stitution.” And the Court further stated that an incidental

departure for business does not deprive it (the homestead )

of its homestead character. And the Court further said:

“Our Constitution limits rather than conveys power, and

hence we look to it to see what it prohibits instead of

what it authorizes.” The homestead provision specifically

enumerates the only circumstances where a homestead

claimant may be deprived of his status.

In the case of Grant, Trustee in Bankruptcy v. Moss-

man, 384 F.2d 496, the question before the Tenth Circuit

was whether or not a farm owned in co-tenancy by three

brothers and operated by them as a partnership was ex-

empt under the Kansas Constitutional provision. The

Court held that it was exempt and the wives of the part-

ners not having consented that the land should become

partnership property that the homestead character was

not changed.

The Referee in Bankruptcy and the Trial Court and

the Court of Appeals based their decision in part on the

early Kansas case of Sarahas v. Fenlon, 5 Kan. 592, de-

cided in 1870. In that case plaintiff in error owned 17%

acres of land in the City of Wyandotte, together with an

adjoining additional tract of 8514 acres outside the City.

The lands in the City were owned before the adoption of

the Kansas Constitution as were the lands outside the

City. The plaintiff in error lived and maintained his resi-

dence on the lands outside the City. The Court held that

the lands outside the City upon which he lived was his

homestead and the lands within the City were not. In

other words, he could not have two homesteads, one with-

in the City and one without the City. The question in

the Sarahas case is not involved in the cause now before

the Court for there is only one homestead claim. The

Court, in the Sarahas case wound up its decision by stat-

ing, “at any rate he (plaintiff in error), cannot get relief

in a motion to set aside the sale.” In other words, no

claim of homestead rights was made until after the Sher-

iff’s Sale of the land in the City.

The Tenth Circuit in its opinion recognized that the

Sarahas v. Fenlon case contained dictum and was, there-

fore, not directly controlling.

It is, therefore, clear from this and other cases that

Article 15, Section 9, of the Kansas Constitution, is the

supreme law of the State governing homestead exemp-

tions and that the exemption cannot be taken away by

legislative enactment such as 13-1602a Kansas Statutes

Annotated and a City being the creature of the legislature,

it cannot by ordinance alienate a homestead right in real

property after the homestead right has been established,

for this would be doing indirectly what the legislature

could not do directly.

In the case of Fields v. Anderson Cattle Co., 193 Kan.

558, 396 P.2d 276, it was held that a zoning ordinance of

the County could not apply to the use of land for agricul-

tural purposes, therefore, the fact that the homestead

property of petitioner-bankrupt was zoned for heavy in-

dustry did not affect or alienate its use as a homestead.

In the Record on Appeal, page 23, which is page 17

of the Referee’s opinion, he states that in the case of Bab-

cock v. Kansas City, Kansas, 197 Kan. 610, 419 P.2d 883,

that the ordinance annexing bankrupt’s property was

passed upon by the Court in that case; the ordinances

passed upon in the Babcock case were published between

February 11, 1965, and June 4, 1965, and the ordinance

annexing bankrupt’s property was not enacted by the

City Commission until March 1, 1966 (Appendix page

A21, Record on Appeal, pages 36 and 37). The holding

in the Babcock case is to the effect that a private individ-

ual cannot attack annexation of land to a City and that

only the County Attorney or the Attorney General of the

State can question annexation of lands by a City, and the

Court in its opinion said:

“Throughout the history of the jurisprudence of this

state, this court has never permitted a private individ-

ual to bring an action attacking the legality of the

corporate existence of a city, where the plaintiff's

right to bring the action was properly challenged.

Likewise, it has been uniformly held that the exten-

sion of corporate limits to include new territory,

under statutory authority, is, in effect, a reorganiza-

tion of the city, and an action attacking the legality

of such reorganization attacks the corporate integrity

of the city in the same manner as if the city’s original

organization were attacked. Moreover, the legality

of the organization or reorganization of a city cannot

be questioned in a collateral proceeding or at the suit

of a private individual but must be prosecuted by

the state acting through its proper officers (Topeka

v. Dwyer, 70 Kan. 244, 78 Pac. 417; Railway Co. v.

Lyon County, 72 Kan. 16, 84 Pac. 1031; Chaves v.

Atchinson, 77 Kan. 176, 94 Pac. 624; Gardner v.

Benn, 81 Kan. 442, 105 Pac. 435; Prive v. City of Mc-

Pherson, 92 Kan. 82, 139 Pac. 1162; Horner v. City

of Atchinson, 93 Kan. 557, 144 Pac. 1010; Mason v.

Kansas City, 103 Kan. 275, 173 Pac. 535; Wellman

v. City of Burr Oak, 124 Kan. 780, 262 Pac. 607;

Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d

101, 13 A.L.R. 2d 1272). The cases are legion on the

point and the list of authorities is not intended to

be exhaustive.”

On the strength of this case bankrupt was helpless

to protect his homestead rights in the property which

the City Ordinance extinguished for if the County At-

torney or the Attorney General did not attack the valid-

ity of the annexing ordinance, a citizen could not do so;

in other words, petitioner suffered a wrong without a

remedy, namely a violation of his constitutional rights

under Article 15, Section 9 of the Kansas Constitution

and the 14th Amendment of the Constitution of the United

States.

In the case of State ex rel. Hawkes County Attorney

v. The City of Topeka, 172 Kan. 745, 243 P.2d 218, it was

held that G.S. 13-1602 (now appearing in Kansas Statutes

Annotated) is not the exclusive method of a City oper-

ating under the commissioner form of government to

annex property and that the City could annex lands if it

so chose, under the method prescribed in the general law

applicable to cities of any class (12-501, 12-502 and 12-

502a, Kansas Statutes Annotated). It, therefore, ap-

pears that under Kansas law a city operating under a

commissioner form of government has the choice of using

the law that gives the landowner no right to a hearing

or objection to annexation or can use the law (12-501,

12-502 and 12-502a, Kansas Statutes Annotated) which

gives the owner of the property the right to notice, a hear-

ing, and the right to appeal to the District Court of the

County, as to whether or not his property should be an-

nexed to a City.

In the case of State ex rel. Hugh H. Kreamer, County

Attorney v. City of Overland Park, Kansas, 192 Kan.

654, 391 P.2d 128, it was held that “an action challenging

the validity of a city annexation ordinance can be pros-

ecuted only by the state acting through one of its officers

such as the County Attorney or the Attorney General”,

citing Lampe v. City of Leawood, 170 Kan. 251, 225 P.

2d 73.

FEDERAL CASES CONSTRUING THE HOMESTEAD

EXEMPTION WHERE THE HOMESTEAD CAN

ONLY BE ALIENATED BY THE JOINT CONSENT

OF HUSBAND AND WIFE WHERE THAT

RELATION EXISTS

In the case of Jones v. Kemp, et al., 144 F.2d 478

(10th Cir. 1944), the Oklahoma Constitutional home-

stead provision was similar to the Kansas provision in

that a homestead can be alienated only by the joint con-

sent of husband and wife where that relation exists and

the Court held that in Oklahoma a homestead right is

a creature of the Constitution and Statutes and, although

not an estate, it is a special and peculiar interest in land

belonging to husband and wife jointly and indivisibly and

that neither husband or wife may be divested of his or

her interest in the homestead without the consent of both;

and that the wife’s interest in the homestead being an

indivisible and vested interest cannot be subject to levy

and sale for Federal and State taxes assessed against

the husband.

In Bigley v. Jones, Collector of Internal Revenue,

64 F. Supp. 389 (D.C. Okla.), the Court held that the

wife’s homestead rights under Oklahoma law is an indi-

visible and vested interest in homestead property and nct

subject to payment of income taxes to the government

assessed against the husband.

In Hammon v. Sommer, 10 F. 601 (C.C. Kan., 1882),

the Circuit Court held that a husband, after the death

of his wife, could alienate his interest in the homestead

absolutely or by mortgage, but the rights of occupancy

by the minor children would not be affected thereby. In

cther words, such a mortgage was a valid lien upon the

interest of the husband subject to the rights of occupancy

as a homestead by the children born of the marriage of

the husband and wife.

In U. S. v. Hersberger, 338 F.2d 804 (D.C. Kan., 1972),

the Court held that property occupied by husband and wife

and owned by them jointly could be claimed as a home-

stead by the wife and that the wife could assert home-

stead rights in the property and precluded a foreclosure of

Federal tax liens against the husband upon the property.

From the above cited Federal cases, we see that the Fed-

eral Courts in this Circuit have recognized the right of the

wife to claim a homestead interest in property occupied by

the family and claimed exempt as a homestead in Kansas

and Oklahoma. The petitioner contends that the decision

of the Court of Appeals is in conflict with the holdings of

these Federal cases and the holdings of the Supreme Court

of Kansas on the same question, and the holdings of this

Court construing 14th Amendment rights in property.

THE DECISIONS OF THE DISTRICT COURT AND

THE COURT OF APPEALS WERE CLEARLY ER-

RONEOUS IN THE APPLICATION OF THE KAN-

SAS CONSTITUTIONAL PROVISION REGARDING

HOMESTEAD EXEMPTIONS AND THE APPLICA-

TION OF FOURTEENTH AMENDMENT OF THE

CONSTITUTION OF THE UNITED STATES TO

PROPERTY RIGHTS TO THE FACTS

IN THIS CAUSE

General Order In Bankruptcy Number 36 provides

that except as regulated by the Bankruptcy Act appeals

shall be governed by the rules in civil actions including the

Rules of Civil Actions in the Courts of the United States.

Section 24, of the Bankruptcy Act (11 U.S.C. 47), pro-

vides that the Courts of Appeals are invested with appel-

late jurisdiction from Courts of Bankruptcy in controversies

arising in bankruptcy proceedings and that such jurisdic-

tion shall be exercised by appeal and further provides that

the Supreme Court of the United States is vested with

jurisdiction to review judgments, decrees and orders of the

Courts of Appeals in accordance with the provisions of the

laws of the United States.

General Order In Bankruptcy Number 47 provides

that the Judge shall accept the findings of the Referee in

Bankruptcy unless clearly erroneous. Rule 52 of the Rules

of Civil Procedure provides that findings of fact shall not

be set aside unless clearly erroneous. It is the contention

of petitioner that the findings of fact both of the Referee

In Bankruptcy and the District Court and the decision and

judgment of the Court of Appeals were clearly erroneous

in that there was a stipulation filed with the Court as to

the occupancy as a homestead by petitioner and his wife

of the 13.2 acre farm from the time of purchase to and

after the filing of the bankruptcy proceeding and the ad-

judication in bankruptcy of petitioner. This stipulation is

set forth in the appendix at page A22. The testimony of

petitioner-bankrupt was uncontradicted, it clearly showed

that the farm was a homestead (Transcript of July 19,

1972). The question in this appeal was one of law, that is,

whether the annexation of petitioner’s farm by the City

extinguished and alienated his interest therein as a home-

stead. On the strength of the Kansas and Federal cases

cited in this petition, petitioner submits that the decision

of the Trial Court and the Court of Appeals misapplied the

law and the constitutional provisions of Kansas concern-

ing homesteads and the 14th Amendment of the Constitu-

tion of the United States as tc property rights of peti-

tioner in his homestead on the strength of the authorities

heretofore cited in this petition. Furthermore petitioner

contends that since there are no Kansas cases passing

squarely on the question to the effect of annexation by a

City on a homestead of more than one acre of land, the

Court should have applied the abstention doctrine and in-

structed the Trustee to litigate the question of homestead

exemption in the State Court or have reversed the judg-

ment of the Trial Court as erroneously applying the law

to the facts in the case. In this connection we wish to

call the Court’s attention to: U.S. v. U. S. Gypsum Co.,

68 S.Ct. 525, 333 U.S. 364, 92 L.Ed. 92, rehearing denied, 68

S.Ct. 788, 333 U.S. 869, 92 L.Ed. 1147, wherein it was held

that a finding is clearly erroneous when although there is

evidence to support it, the reviewing Court on entire evi-

dence is left with a definite and firm conviction that a

mistake has been committed and it was further held that

the findings of a Trial Court do not have the statutory or

constitutional limitations of findings of administrative

agencies or of a jury and that the Supreme Court may re-

verse findings of fact by Trial Courts where clearly er-

roneous. In the case of Manning v. M/V, (C.A. Fla., 1969)

417 F.2d 603, it was held that the clearly erroneous rule

does not apply to facts or legal conclusions induced by an

erroneous legal standard in the Trial Court and in Mac-

Mullen v. South Carolina Electric and Gas Co., (C.A. So.

Car., 1963) 312 F.2d 662, certiorari denied, 83 S.Ct. 1302,

373 U.S. 912, 10 L.Ed.2d 413, it was held that the clearly

erroneous rule is subject to exception and modification in

the interest of justice.

In U. S. v. Mississippi Valley Generating Co., 81 S.Ct.

294, 297, 364 U.S. 520, 526, 5 L.Ed.2d 268, it was held that

the clearly erroneous restriction is not applicable to the

Trial Court’s rulings on questions of law. See also U. S.

v. Wholesale Oil Co., (10th Cir., 1946) 154 F.2d 745. Both

of the foregoing cases are cited in 9 Wright and Miller,

Federal Practice and Procedure, Section 2588, dealing with

conclusions of law and Section 2589, dealing with mixed

questions of fact and law.

It is the contention of petitioner that there is little,

if any, question in this case regarding the fact that the

truck farm was the homestead of petitioner and that he

had property rights taken away from him without due

process of law in violation of the 14th Amendment to the

Constitution of the United States.

At page 9 of Appellant’s brief, he stated, “but bank-

rupt contends that the Trial Court’s ruling deprived him

of his homestead right without due process of law in viola-

tion of the Fourteenth Amendment to the Constitution of

the United States, in that prior to the passage of the Ordi-

nance bankrupt and his wife, who were the owners of said

property, as joint tenants with the right of survivorship

and not as tenants in common, had a vested interest in

and to said homestead as and for homestead purposes,

within the meaning of the Constitution of the State of

Kansas.” * * *

“In the recent case of Fuentes v. Shevin, 407 U.S. 67,

92 S.Ct. 1983 at l.c. 1997, the Court said:

‘The Fourteenth Amendment’s protection of “prop-

erty”, however, has never been interpreted to safe-

guard only the rights of undisputed ownership.

Rather, it has been read broadly to extend protection

to “any significant property interest,” Boddie v. Con-

necticut, supra, 401 U.S.,*at 379, 91 S.Ct., at 786, in-

cluding statutory entitlements. See Bell v. Burson,

supra, 402 U.S., at 539, 91 S.Ct. at 1589; Goldberg v.

Kelly, supra, 397 U.S., at 262, 90 S.Ct. at 1017’”

In Appellant’s reply brief, it was stated: “The Ref-

eree (Rec. Vol. 4, p. 13) apparently did not think the

Fourteenth Amendment was applicable for his statement

is:

‘The bankruptcy court in determining the exemptions

allowed by states is bound by the state law as inter-

preted by the highest judicial tribunal of the state.’

This may be another reason as to why the Fourteenth

Amendment was not mentioned in the Referee’s opinion

in reference to the bankrupt’s right not to have his home-

stead diminished without a remedy.”

In Bankrupt’s Petition for Rehearing, at page 1, he

stated: “At page 9 of Appellant’s Brief, he contends that

the Trial Court’s ruling affirming the decision of the Ref-

eree in Bankruptcy deprived him of his homestead rights

in 12.2 acres of the 13.2 acre truck farm owned by Bank-

rupt and his wife as joint tenants and not as tenants in

common without due process of law in violation of the

14th Amendment to the Constitution of the United States.

id CaeereMares vORWE iL hoe t

ila enrs

Instead of citing a dragnet of cases to the effect that

property rights are protected by the 14th Amendment,

Appellant cited the most recent cases dealing with prop-

erty rights under the 14th Amendment, namely, Fuentes

v. Shevin, 92 S.Ct. 1983, 407 U.S. 67, 32 L.Ed.2d 556, re-

hearing denied, 93 S.Ct. 180, to the effect that the 14th

Amendment’s protection of property, however, has never

been interpreted to safeguard only the rights of undis-

puted ownership. Rather, it has been read broadly to ex-

tend protection to “any _ significant property in-

——. '" *

In the Majority Opinion of the Court of Appeals, it

was stated, at page 7, “He (petitioner) contends that a

farming homestead is exempt from forced sale under any

process of law and cannot be alienated without the joint

consent of husband and wife even though it was annexed

to the City without depriving him of due process of law

in violation of the Fourteenth Amendment to the Consti-

tution of the United States.” And Judge Murrah, in his

Special Concurring Opinion, concludes by saying, ‘“be-

yond stating the point there is no argument in the brief

on the due process question and I will leave it there.”

These statements of the Court of Appeals are incorrect

for in oral argument and in Appellant’s Brief, his Reply

Brief and his Petition for Rehearing, it is clear that Pe-

titioner-Bankrupt, the Appellant in the Court of Appeals,

clearly claimed that he had a vested homestead interest

in his farm and that the vested homestead interest was

alienated and he was deprived thereof without due proc-

ess of law in violation of the Fourteenth Amendment to

the Constitution of the United States. Therefore, the vio-

lation of petitioner’s 14th Amendment rights were clearly

raised.

ROR}: Mn omega —

CONCLUSION

It is the contention of petitioner that the District

Court and the Court of Appeals have erroneously applied

the Kansas Constitutional provisions providing for home-

stead exemptions and the decisions of the Kansas Su-

preme Court to the question of law as to whether or not

the annexation of petitioner’s 13.2 acre farm extinguished

and alienated petitioner’s interest in his farm as a home-

stead save and except one acre upon which the residence

of petitioner and his wife is located leading the Trial

Court to affirm an erroneous decision of the Referee de-

nying petitioner’s right to the whole of the 13.2 acre farm

set over to petitioner as exempt in accordance with the

provisions of the Bankruptcy Act concerning exemptions

to a resident of the State of Kansas under the Kansas

Constitutional provisions and the decision of the Supreme

Court of Kansas and of the Federal Courts construing

said Constitutional provision in violation of bankrupt’s

14th Amendment rights under the Constitution of the

United States. That for the reasons set forth in this pe-

tition that a Writ of Certiorari should issue to review the

opinion and judgment of the Tenth Circuit Court of Ap-

peals.

Respectfully submitted,

Wasi H. Brown

THoMas E. Joyce

428 Brotherhood Building

Kansas City, Kansas 66101

Attorneys for Petitioner

OPINION OF THE COURT OF APPEALS

(Filed April 30, 1973)

Before MURRAH, SETH and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

James George Stafos filed a voluntary petition in bank-

ruptcy on December 24, 1970, listing unsecured debts of

$612,132.06 which he had incurred as a self-employed

broker-distributor and packager of truck farming produce.

He claimed as exempt homestead property, inter alia, a

13.2 acre tract of land in Wyandotte County, Kansas, ac-

quired by him and his wife, Reva, who is not a party

to this proceeding, in 1945 as joint tenants, with right of

survivorship. Stafos, his wife and children have con-

tinually resided on the property since 1945. In his petition,

Stafos estimated the value of the property at $35,000.00.

With some minor exceptions, the property has been used

as the family home and for farm crop income. Reva Stafos

has been actively engaged in the farm operations on the

acreage and some 60 acres of adjacent leased acreage.

Stafos testified that they did about $200,000.00 “worth of

business” from the farming operation in 1971.

Stafos relied upon the provisions of Article 15, § 9 of

the Kansas Constitution’ and K.S.A. § 60-2301 in support

1. Article 15, § 9 provides in pertinent part:

A homestead to the extent of one hundred and sixty acres

of farming land, or of one acre within the limits of an

incorporated town or city, occupied as a residence by the

family of the owner, together with all the improvements on

the same, shall be exempted from forced sale under any

process of law, and shall not be alienated without the joint

consent of husband and wife, when that relation exists; but

no property shall be exempt from sale for taxes, or for the

payment of obligations contracted for the purchase of said

premises, or for the erection of improvements thereon: Pro-

vided, The provisions of this section shall not apply to any

process of law obtained by virtue of a lien given by the

consent of both husband and wife: ...

of his contention that the entire 13.2 acres is exempt. The

language contained in the above cited statute is identical

to the language contained in Article 15, § 9. Until March

1, 1966, the acreage was located outside the limits of any

incorporated city or town. On that date, by ordinance en-

acted in accordance with the then applicable law, the 13.2

acres was annexed to the city of Kansas City, Kansas.

Neither Stafos nor his wife consented to the annexation,

nor is there any evidence that they were movants in re-

spect thereto. No portion of the acreage has been platted.

The Trustee in Bankruptcy filed his report on March 4,

1971, allowing Stafos one acre to be set aside as his exempt

homestead, which is to include his family home out of the

total 13.2 acres, value unknown. Stafos objected and a

hearing was held before the Referee in Bankruptcy on

March 18, 1971. One Rex Vickers, a real estate expert, tes-

tified that on that date the Stafos acreage was part of the

“Muncie Industrial Area” zoned “J” for heavy industry

and that considerable industry had already located in the

immediate vicinity. He further testified that part of the

Stafos acreage had been previously used as an office build-

ing constructed by Miller Construction Company, now oc-

cupied and used as a salvage yard at a monthly rental to

Stafos of $140.00. He also testified with respect to a build-

ing used by Fouts Trucking Company. In his expert opin-

ion ‘‘the whole area there gives the complexion of an in-

dustrial site and an industrial area; not a farm.” He would

not classify the acreage as rural land, but rather as urban

industrial land of a minimum value of $10,000.00 per acre.

He did acknowledge that when he viewed the acreage the

only major visible use being made thereof was farming.

Harry Duckers, County Agricultural Agent, testified that

the Stafos’ have continually farmed the land since 1948.

On January 24, 1972, the Referee filed his Order, with

detailed findings and conclusions, approving the Trustee’s

Report and denying Stafos’ objection. From that Order

Stafos filed his petition for review before the presiding

United States District Judge, Honorable Earl E. O’Connor.

The Court entered its Order on May 19, 1972, fully adopt-

ing the Referee’s findings and conclusions. It held that

annexation reduced Stafos’ homestead to one acre. It is

from that Order that this appeal is taken.

Stafos contends here, as he did below, that the fed-

eral courts should abstain because the homestead exemp-

tion issue decided in In The Matter of James George

Stafos, Bankrupt, ........ F.Supp. ........ (D.Kan. 1972), has

not been decided by the Kansas state courts and that the

Kansas courts are the best judges of the Kansas Constitu-

tion. We have no argument with these contentions, per se.

11 U.S.C.A. § 24 allows bankrupts the exemptions pre-

scribed by state laws at the date of filing. In Re Cum-

mings, 413 F.2d 1281 (10th Cir. 1969), cert. denied 397

U.S. 915 (1970). While a state procedure in the nature

of a Declaratory Judgment action was available to the

Trustee after Stafos filed his homestead claim (K.S.A.

§ 60-1701, et seq.), this does not detract from the fact that

the federal district court had exclusive jurisdiction of the

subject matter. In Re Cummings, supra; Texaco, Inc. v.

Pruitt, 396 F.2d 237 (10th Cir. 1968). While dictum and

therefore not directly controlling, we note that the follow-

ing language from Sarahas v. Fenlon, 5 Kan. 592 (1870) has

not been repudiated by subsequent Kansas decisions:

[H]e [the owner] could hold but one acre as a home-

stead, exempt from execution, no matter whether it was

worth $10 or $10,000, or whether it was used for farm-

ing purposes or was covered all over with palatial resi-

dences. One acre is all that is exempt as a homestead

under the Constitution. If he lived on that part in

the city, that acre would be his homestead, and the

residue of the city property, as well as his land in the

country, would be subject to forced sale under execu-

tion. This is the plain letter of the Constitution; ...

5 Kan. 592 at 596.

The decision of the federal trial court as to the law

of the state where he is sitting will be accepted on appeal

unless clearly erroneous. Industrial Indemnity Company

v. Continental Casualty Company, 375 F.2d 183 (10th Cir.

1967). Certainly Sarahas v. Fenlon, supra, weighs heav-

ily in favor of the trial court’s application of Kansas law.

One court has held that in the absence of ascertainable

state court interpretation, the bankruptcy court must con-

strue the statute and determine its application. Doethlaff

v. Penn. Mut. Life Ins. Co., 117 F.2d 582 (6th Cir. 1941),

cert. denied 313 U.S. 579 (1941). In addition, the rights

of creditors have been held in “limbo” awaiting resolution

of this exemption issue for more than two years. This

case does not present all of those ‘‘special circumstances”

dictating the imposition of abstention as in Kaiser Steel

Corp. v. W. S. Ranch Co., 391 U.S. 593 (1968), Baggett v.

Bullitt, 377 U.S. 360 (1964), and Meredith v. Winter Haven,

320 U.S. 228 (1943).

Stafos alleges that the trial court erred, as a matter

of law, in adopting the findings and conclusions of the

Referee. He contends that a farming homestead is exempt

from forced sale under any process of law and cannot be

alienated without the joint consent of husband and wife

even though it was annexed to the City without depriving

him of due process of law in violation of the Fourteenth

Amendment to the Constitution of the United States. He

alleges that he had a vested interest in the 13.2 acres as a

farming land homestead within the meaning of the Kansas

Constitution prior to the passage of the City Ordinance in-

corporating the 13.2 acres because he and his wife owned

the property as joint tenants.

The test of our review is prescribed under Rule 52,

Fed.R.Civ.P., as required by 11 U.S.C.A. § 47(b) and

Bankruptcy Gen. Order 36, 28 U.S.C.A., which specifically

provide that the United States Courts of Appeal shall ex-

ercise appellate jurisdiction from the several courts of

bankruptcy in their respective jurisdictions in the form

and manner of an appeal in civil actions, including Rules

of Civil Procedure for the District Courts.

The question for the appellate court under Rule 52(a)

is not whether it would have made the findings the

trial court did, but whether “on the entire evidence

[it] is left with the definite and firm conviction that

a mistake has been committed.” Zenith Radio Corp.

v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969).

The same rule applies in cases involving constitutional

rights. Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972).

If a trial court adopts a referee’s findings and conclusions,

they are thereby adopted and approved as its own. Ear-

hart v. Callan, 221 F.2d 160 (9th Cir. 1955), cert. denied

350 U.S. 829 (1955). Under Bankruptcy General Order 47,

28 U.S.C.A., the Trial Court is bound to accept the Referee’s

findings of fact unless they are clearly erroneous. Moran

Bros., Inc. v. Yinger, 323 F.2d 699 (10th Cir. 1963). The

“clearly erroneous” rule does not apply on questions of law

or on mixed questions of fact and law. See cases cited in

9 Wright & Miller, Federal Practice and Procedure: Civil

S$ 2588, 2589; Wright, Law of Federal Courts, 2nd Ed.,

§ 96. However, in our Circuit it is settled law that the

views of a Federal District Judge, who is a resident of the

state where the controversy arose in a case involving

interpretations of the law of that state, carry extraordi-

nary persuasive force on appeal, if the Court of Appeals

is not aided in its consideration by either administrative

interpretation or judicial expression from state courts.

Hardberger and Smylie v. Employers Mutual Liability In-

surance Company of Wisconsin, 444 F.2d 1318 (10th Cir.

1971); Hamblin v. Mountain States Telephone and Tele-

graph Company, 271 F.2d 562 (10th Cir. 1959); Bradshaw v.

Superior Oil Co., 164 F.2d 165 (10th Cir. 1947).

The Referee and the Trial Court relied on the weight

of case authority in limiting Stafos to a one-acre home-

stead exemption which must include the “home” or “resi-

dence” of the family, by specific reference to the general

rule set forth in 40 C.J.S. Homesteads § 58:

While there is authority to the contrary, in most juris-

dictions where the question has been raised it has

been held that, even without the owner’s consent

and against his wishes, the limits of a city, town,

or village may be extended so as to include what was

formerly a rural homestead and to afford the owner

only the amount available as an urban homestead.

Where the mere fact that land lies within the bound-

aries of the city, town, or village, is not regarded as

necessarily stamping it with the character of urban

property for homestead purposes, as discussed supra

§ 53, it is necessary, in order that the owner shall lose

the right to a rural homestead and be restricted to

the right of an urban homestead, that the land, in ad-

dition to being embraced within the extended mu-

nicipal limits, shall be otherwise actually impressed

with an urban character. ...

We specifically concur with the findings of the Referee

and Trial Court that although the Stafos acreage remains

unplatted, that neither the Kansas Constitution nor stat-

utes require that the land incorporated be platted or laid

out for urban purposes in order to be impressed with

urban character. There is substantial evidence supporting

the finding that the character of the Stafos acreage is

urban and that his homestead should be limited to one acre

after annexation. Nothing expressed in the Kansas Con-

stitution, Article 15, § 9, K.S.A. § 60-2301, or the Kansas

decisions which we have reviewed in detail convince us

that the trial court committed error. United States v. J ones,

229 F.2d 84 (10th Cir. 1955).

AFFIRMED.

No. 72-1495

MURRAH, Circuit Judge, concurring specially:

I readily concur in the ultimate result reached in

this case but I am unable to agree with the reasoning by

which my brethren reached that result. In my view

the lawsuit is more simply stated and decided, and I am,

therefore, constrained to briefly state my views.

When the bankrupt acquired his 13.2 acres of land,

it was outside the city limits of Wyandotte, Kansas. He

was living on the land as his homestead and truck farm

when it was annexed and brought within the city limits,

and was so using it when this proceeding was commenced,

although the land had been zoned for urban industrial

use. He claimed all of the 13.2 acres as his homestead

exemption. The referee and the trial court allowed only

one acre under the provisions of the Kansas constitution

and statute, which provide that “[a] homestead to the

extent of one hundred sixty acres of farming land, or

of one acre within the limits of an incorporated town or

city, occupied as a residence by the family of the owner,

together with all the improvements on the same, shall

be exempted from forced sale under any process of law,

In his brief the bankrupt concedes that the referee

correctly stated the question involved, as follows: “Did

the extension of the city limits, annexation and incorpora-

tion of the entire tract of 13.2 acres into the city of Kansas

City, Kansas, subsequent to the ownership and occupancy

of the entire tract as a homestead by the bankrupt and

his family outside the limits of an incorporated town or

city, limit the homestead exemption to one acre?” The

bankrupt answers that the extension of the city limits to

include his homestead did not operate to “eliminate” or

“alienate” his homestead rights in the 13.2 acres. His

argument is not entirely clear, but, as we read it, it is

twofold: (1) the land continued to be occupied and used

for farming purposes, and was, therefore, exempt as farm-

ing land, although incorporated within the city limits

and zoned for urban industrial use; and (2) any other

construction of the Kansas constitution and laws would

operate to deny him Fourteenth Amendment due pro-

cess.

Indisputably the bankrupt is entitled to claim a home-

stead exemption prescribed by the law of the State of

Kansas, but the power of the city to annex the property,

even without the consent of the owner, is unquestioned.

The question is, as the referee stated, whether inclusion

in the city limits can be said to reduce the quantity of the

homestead rights from 13.2 acres to one acre. As thus

reduced the homestead admittedly remains inviolate.

The homestead provisions of the Kansas constitution

and statutes came on for consideration before the Supreme

Court of Kansas about one hundred years ago in Saharas

v. Fenlon. In that case the lands claimed as a homestead

exemption were partly within and partly without incor-

porated city limits. The lands within the city limits were

sold on execution, and the question reaching the Supreme

Ccurt was whether the husband-wife owners could claim

the city property as their homestead exemption. The

Supreme Court held that they could not claim any of the

city property as their homestead, simply because they did

not live on it. But the court did not stop there. It went

on to say that “even if the claimant lived on that part of

the land within the city, he could hold but one acre as

a homestead, exempt from execution, no matter whether

it was worth $10 or $10,000, or whether it was used for

farming purposes or was covered all over with a pala-

tial residence. One acre is all that is exempt as a home-

stead under the constitution. If he lived on that part in

the city, that acre would be his homestead, and the res-

idue of the city property as well as his land in the country

would be subject to forced sale under execution. This

is the plain letter of the constitution; it cannot be enlarged

by construction or made plainer by argument.” As far

as we can find this unequivocal dictum has never been

repudiated or challenged in any court since its pronounce-

ment.

After canvassing the legal effect of the use to which

the land was put on the quantity of the exemption, the

referee finally concluded that regardless of the value,

the use or the zoning classification, the Kansas constitu-

tion controlled, and that it meant just what it said, to wit:

Since at the time of bankruptcy the 13.2 acres were within

the limits of an incorporated city, only one acre was ex-

empt as a homestead. I agree that the mandate of the

constitution is too clear for mistake or debate. In this

view there is no justification whatsoever for abstention.

This is a Meredith case, not a Kaiser Steel case. But

even if there was any room for interpretation the word

of the Kansas judge, recently of the Supreme Court of

Al0

that State, is quite good enough for me. See United

States v. Hershberger, No. 72-1416 (10th Cir. filed Mar.

13, 1973). Beyond stating the point there is no argument

in the brief on the due process question and I will leave

it there.

PETITION FOR REHEARING

Comes now the Appellant, James George Stafos, by

Wash H. Brown and Thomas E. Joyce, his attorneys, and

respectfully moves the Court for an order granting a re-

hearing in this appeal for the following reasons: This

appeal involves an important interpretation of Article

15, Section 9, of the Constitution of the State of Kansas,

providing for homestead exemptions in said State which

was not dealt with in this Court’s opinion.

At page 9 of Appellant’s Brief, he contends that the

trial Court’s ruling affirming the decision of the Referee

in Bankruptcy deprived him of his homestead rights in

12.2 acres of the 13.2 acre truck farm owned by Bankrupt

and his wife as joint tenants and not as tenants in com-

mon without due process of law in violation of the 14th

Amendment to the Constitution of the United States. In-

stead of citing a dragnet of cases to the effect that prop-

erty rights are protected by the 14th Amendment, Appel-

lant cited the most recent case dealing with property

rights under the 14th Amendment, namely, Fuentes vs.

Sheven, 92 S. Ct. 1983, 407 U.S. 67, 32 L. Ed. 556, rehear-

ing denied 93 S. Ct. 180, to the effect that the 14th Amend-

ment’s protection of property, however, has never been

interpreted to safeguard only the rights of undisputed

ownership. Rather, it has been read broadly to extend

protection to “any significant property interest”, Bodie

vs. Conn., 401 U.S. at 379, 91 S. Ct. at 786, including Stat-

All

utory Enactments. See Bell vs. Burson, 402 U.S. at 539,

91 S. Ct. at 1589; Goldberg vs. Kelly, 397 U.S. at 262, 90

S. Ct. at 1017, with the citation of this case and the call-

ing of the Court’s attention that the trial Court’s ruling

deprived bankrupt of his homestead rights without due

process of law in violation of the 14th Amendment, Ap-

pellant feels that the issue as to his deprivation of prop-

erty (his homestead interest in the whole of the 13.2 acre

tract) contrary to the 14th Amendment was fully raised.

Before arguing the effect of the Kansas Exemption Con-

stitutional Provision on Federal Law and the decisions of

the Federal Courts on the subject, we first wish to call

the Court’s attention to the Kansas decisions.

The Kansas Supreme Court in West vs. Grove, 139

Kan. 361, 31 P. 2d 10, held that “the general exemption

laws of the State are those provisions included in RS.

60-3501 to 60-3509, inclusive.” “Those statutes may be

said to be “exemption laws of this State”, but anything

that the legislature might see fit to enact or did enact

could in no way limit the constitutional provisions with

respect to a homestead.” It, therefore, appears that Ar-

ticle 15, Section 9, of the Kansas Constitution is the Su-

preme Law of the State governing homestead exemptions

and that the exemption cannot be taken away by legis-

lation or City Ordinance without the consent of husband

and wife where that relation exists.

In Towle vs. Towle, 81 Ks. 675, 107 P. 28, the Court

heid that the power of the Legislature over the homestead

right is limited only by the Federal and State Constitutions.

In State vs. Mitchell, 194 Ks. 463, 399 P. 2d 556,

the Court stated that the word “alienate” as used in Article

15, Section 9, of the Kansas Constitution, means “a parting

with or surrendering of some interest in the homestead.”

and as early as Morris vs. Ward, 5 Ks. 239, the Supreme

Court said: “The possession of the homestead is an ac-

Al2

quired interest,” and at page 466 in State vs. Mitchell

said: “It suffices to say that Kansas has zealously pro-

tected the family rights in homestead property by liberally

construing the homestead provisions in order to safeguard

its humanitarian and soundly social and economic purposes;

and nothing less than the free consent of the resident

owners of the homestead, and joint consent of husband

and wife where that relation exists, will suffice to alienate

the homestead except under the specified exceptions pro-

vided in the constitution” and in the case of In Re Estate

of Dittemore, 152 Ks. 474, 106 P. 2d 1056, at lc. 577,

the Court said: “Where the homestead character has once

attached to the residents of the family group, it will con-

tinue so long as one of its number reside therein.” In

the early case of Helm vs. Helm, 11 Ks. 19 (Reprint Page

25), decided in 1873, Chief Justice Kingman, at page 21

(Reprint Page 27), said: “Our homestead provision is pe-

culiar. The homestead cannot be alienated without the

joint consent of the husband and wife. The wife’s interest

is an existing one. The occupation and enjoyment of

the estate is secured to her against any act of her hus-

band, or creditors, without her consent. The law has

set this property apart as her home. It may be difficult

to define the estate but it is one nevertheless. The wife’s

right under our homestead laws is an existing interest,

probably none will deny.” See also Jewett and Co. vs.

McKrie, 36 Ks. 636, 14 Pac. 257.

This Court in its opinion relied on Sarahas vs. Fenlon,

5 Ks. 592 (Reprint Page 360), this case is not in point

for it involves an irregular tract of land bounded by 10

lines forming all right angles 171, acres of which was

in the City, and 8514 outside of the City upon which

tract the residence was located. John Sarahas owned the

entire tract within and without the City prior to the adop-

tion of the Kansas Constitution. Execution on a judgment

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rendered against him was issued and the lands within

the City were levied upon and sold to Thomas P. Fenlon

and thereafter John Sarahas moved to set aside the execu-

tion sale, apparently he did not do anything until after

the land was sold, and the Court concludes its opinion

by stating: “at any rate he cannot get relief on a motion

to set aside a sale.” Which implies that the proper remedy

was to file a motion to quash the execution prior to sale,

which he failed to do. The part of the opinion relied

upon by this Court in deciding the appeal in this case

is dictim and this Court acknowledges that it was. The

earliest Federal case the writers can find dealing with

Kansas homestead exemption is Hammon vs. Sommer, 10

Fed. 601, (CC. Ks. 1882), wherein the Circuit Court held

that a husband after the death of his wife could alienate

his interest in the homestead absolutely or by mortgage,

but the rights of occupancy by the minor children will

not be affected thereby. Such a mortgage is a valid lien

upon the interest of the husband subject to the rights

of occupancy and the homestead rights of the heirs.

The rights of a wife or children under the Kansas

homestead provisions of its constitution is an interest which

cannot be alienated even for an indebtedness to the Federal

Government for taxes assessed against the husband where

the relation of the husband and wife exists. Oklahoma

has a provision in its Constitution similar to that of Kansas

Constitution in that a homestead can be alienated only

by the joint consent of husband and wife where that rela-

tion exists and the Tenth Circuit in Jones vs. Kemp, et

al., 144 F. 2d 478, held that in Oklahoma a homestead

right is a creature of the Constitution and statutes and,

although not an estate, it is a special and peculiar interest

in land belonging to husband and wife jointly and indi-

visibly. And that neither husband or wife may be de-

vested of his or her interests in the homestead without

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the consent of both and that the wife’s interest in the

homestead being an indivisible and vested interest cannot

be subjected to levy and sale for satisfaction of Federal

tax liability of the husband.

This case was followed in Bigley vs. Jones, Collector

of Internal Revenue, 64 Fed. Supp. 389, wherein the Court

held that the wife’s homestead rights which under Okla-

homa law is an indivisible and vested interest in home-

stead property is not subject to sale for payment of income

taxes due the government from her husband. In U. §S.

vs. Hershberger, 338 Fed. Supp. 804, (D.C. Ks. 1972), the

Court held that property occupied by husband and wife,

and owned by them jointly as tenants could be claimed

as homestead by wife who claimed to be the head of

the household and that the wife could assert homestead

rights in the property and preclude foreclosure of Federal

Tax Liens against the interest of the husband in the prop-

erty.

In these tax cases the Federal Courts recognize that

there is an indivisible and vested property interest in

a homestead of husband and wife and that the homestead

property is not subject to sale for taxes due and owing

by the husband. The homestead of Appellant now before

the Court was established prior to its annexation by the

City, it, therefore, follows that the homestead interests

of the bankrupt and/or his wife were not alienated by

the passage of a City Ordinance without notice and with-

out an opportunity to be heard for there was no consent

of husband and wife to the annexation of their property

into the City, therefore, their vested property rights in

the homestead were not extinguished by annexation and

the area of their truck farm reduced from 13.2 acres to

1 acre, of their established homestead without due process

of law. The Federal Courts trial, appellate and supreme

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have decided many cases under the 14th Amendment and

as heretofore stated appellant elected not to cite a dragnet

of these cases but rely on the last decision of the Supreme

Court in Funtes vs. Shevin decided June 12, 1972, to the

effect that the 14th Amendment extends to any significant

property interest.

To permit the opinion in this appeal to stand would

subject every farmer whose farm borders or is in close

proximity to a first class City to loose their existing home-

stead interest in their land; and reduce their homestead

interest to one acre when the governing body of a first

class City by the passage of an Ordinance extending the

boundaries of the City without notice of any kind, and the

laws of Kansas require no notice and provide for no hear-

ing of landowners in the case of first class Cities (but

does require notice to landowners and a provision for ob-

jecting to annexation in the case of second and third class

Cities). It is the contention of appellant that their home-

stead interest was a vested one and that since no remedy

is provided by the laws of Kansas, that they have been

deprived of their homestead interest in their land as a

truck farm by the reduction in acreage from 13.2 acres to

one acre of land.

CONCLUSION

It is respectfully submitted that a rehearing should be

granted in this cause and the original opinion vacated and

reargument of the cause permitted.

Respectfully submitted,

Wash H. Brown and Thomas E. Joyce

By: Thomas E. Joyce

Attorney for Appellant

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ORDER

MAY TERM—MAY 31, 1973

Before Honorable Alfred P. Murrah, Honorable Oliver Seth

and Honorable James E. Barrett, Circuit Judges

This matter comes on for consideration of the Peti-

tion for Rehearing filed by the Appellants in the captioned

case.

Upon consideration whereof, the Petition for Rehear-

ing is denied.

/s/ Howard K. Phillips

Clerk

LETTER FROM CLERK

UNITED STATES COURT OF APPEALS

Tenth Circuit

Office of the Clerk

Denver, Colorado 80202

Howard K. Phillips Telephone

Clerk 303-837-3157

June 8, 1973

Mr. Arthur G. Johnson, Clerk

United States District Court

Federal Building

Kansas City, Kansas 66601

Re: No. 72-1495, In the Matter of James George

Stafos v. Laurence M. Jarvis, etc. (District

Court No. 21239-B-4)

Dear Mr. Johnson:

In accordance with Rule 41 of the Federal Rules of

Appellate Procedure, effective July 1, 1968, I am enclos-

Al7

ing a certified copy of the judgment and a copy of the

opinion, which shall constitute the mandate of this Court.

You will please file this mandate in the records of your

court immediately upon receipt of it by direction of this

Court. I am also enclosing a form of receipt for you to

sign and return to this office.

The original record on appeal will be returned to you

at a later date.

Very truly yours,

/S/ Howard K. Phillips,

Clerk

HKP/li

Enclosures

cc: Thomas E. Joyce and Wash H. Brown, Esquires, At-

torneys at Law, 428 Brotherhood Building, Kansas

City, Kansas 66101

Gerald T. Elliott and Robert M. Kaplan, Esquires,

Attorneys at Law, Floor Seven, Huron Building,

Kansas City, Kansas 66101

Mr. Laurence M. Jarvis, Trustee in Bankruptcy,

3115 Strong Avenue, Kansas City, Kansas 66101

JUDGMENT

(Filed June 8, 1973)

MARCH TERM—APRIL 30, 1973

Before Honorable Alfred P. Murrah, Senior Circuit J udge,

Honorable Oliver Seth and Honorable James E. Bar-

rett, Circuit Judges

This cause came on to be heard on the record on ap-

peal from the United States District Court for the DIS-

TRICT OF KANSAS, and was argued by counsel.

Al8

On consideration whereof, it is ordered that the judg-

ment of said court is AFFIRMED; MURRAH, Senior Cir-

cuit Judge, concurring.

Howard K. Phillips,

Clerk

By: /s/ Lavon M. Irlbeck

Deputy Clerk

MEMORANDUM OPINION

(Filed May 19, 1972)

Bankrupt has petitioned for review of the referee’s

order of January 24, 1972, denying his claim to a rural,

as opposed to urban, homestead. The pertinent facts,

as determined in substance by the referee, are as follows:

1. Bankrupt Stafos and his wife acquired title as

joint tenants with right of survivorship by warranty deed

to 13.2 acres of land located in Wyandotte County, Kan-

sas, on November 23, 1945.

2. Since purchase of the land, the Stafos have con-

tinuously resided on it with their family as a homestead.

3. When the land was purchased in 1945, it was out-

side the corporate limits of any town or city.

4. On March 1, 1966, by Ordinance No. 45492, the

city of Kansas City, Kansas, annexed the land in ques-

tion as part of the city.

5. On December 24, 1970, James George Stafos

filed a voluntary petition in Bankruptcy, claiming 13.2

acres as his homestead exemption under the provisions

of the Kansas Constitution, Article 15, §9, and K.S.A. 60-

2301:

Ald

“60-2301. Homestead; extent of exemption. A

homestead to the extent of one hundred and sixty

(160) acres of farming land, or of one acre within

the limits of an incorporated town or city, occupied

as a residence by the family of the owner, together

with all the improvements on the same, shall be ex-

empted from forced sale under any process of law,

and shall not be alienated without the joint consent

of husband and wife, when that relation exists; .. .”

6. Reva Stafos, wife of the bankrupt, who occupies

the premises with her husband as a homestead and is a

joint tenant, did not join in the bankruptcy proceedings.

7. The land in question is unplatted, but zoned “J”

Heavy Industry. Two buildings on the property have

been used for industrial purposes.

8. The property in the same general vicinity is

used for industrial purposes.

9. An experienced realtor testified at the hear-

ing on this matter that the land in question was valued at

$10,000 per acre, while farming land in the area was sel-

ling for approximately $650 per acre.

10. Some of the land has been used to grow vege-

tables.

11. The character of the land in question on the

date of the filing of the petition was urban industrial as

opposed to rural farming land.

Although there is some evidence to support the

bankrupt’s position, this court is bound upon review by

the referee’s findings of fact unless they are clearly erro-

neous. Washington v. Houston Lumber Company, 310 F.

2d 881 (10th Cir. 1962). Despite the additional evidence

presented by the bankrupt at the hearing on his Petition

A20

for Review, the court is not prepared to overturn the

referee’s findings, which are amply supported by the evi-

dence. We therefore look to the Kansas law to be ap-

plied to these facts.

The referee, in his extensive conclusions, has thor-

oughly reviewed the Kansas law with respect to the

effect of an extension of city limits on the homestead

exemption. The Supreme Court of Kansas has stead-

fastly held, directly or by implication, that the constitu-

tional and statutory provisions must be strictly construed

despite the “. . . great hardships . . . attending the unnec-

essary extension of city limits over lands which could

more appropriately be used for agricultural purposes”

because the court “. . . is not the proper tribunal to correct

that evil.” Sarahas v. Fenlon, 5 Kan. 592 (1870), at p.

595. See also, Water-Supply Co. v. Root, 56 Kan. 187,

42 Pac. 715 (1895); Fletcher v. Weigel, 152 Kan. 104,

102 P.2d 1055 (1940). The Kansas cases cited and

discussed by the referee follow the general rule as stated

in 40 C.J.S. 498, Homesteads $57:

“While there is authority to the contrary, in

most jurisdictions where the question has been raised

it has been held that, even without the owner’s con-

sent and against his wishes, the limits of a city, town,

or village may be extended so as to include what was

formerly a rural homestead to afford the owner only

the amount available as an urban homestead.”

The bankrupt here contends that the court should

adopt the minority rule:

“Where the mere fact that land lies within the

boundaries of the city, town, or village, is not regarded

as necessarily stamping it with the character of

urban property for homestead purposes .. ., it is nec-

A21

essary, in order that the owner shall lose the right

to a rural homestead and be restricted to the right

tc an urban homestead, that the land, in addition to

being embraced within the extended municipal lim-

its, shall be otherwise actually impressed with an

urban character.” 40 C.J.S. 498, Homesteads $57.

No Kansas case has been found tending to support the

minority view. Even if this were the law of Kansas, the

referee’s findings lead to the conclusion that this land is

urban industrial in character and no longer is “farming

land” as contemplated by the Constitution.

The referee’s findings and conclusions are adopted

in toto, and his order is affirmed in all respects. The

bankrupt is entitled only to the one-acre homestead ex-

emption.

IT IS SO ORDERED.

Dated this 19th day of May, 1972, at Kansas City,

Kansas.

/s/ Ear] E. O’Connor

United States District Judge

ORDINANCE NO. 45492

(First published March 2, 1966)

AN ORDINANCE extending the City Limits of Kansas

City, Kansas

BE IT ORDAINED BY THE GOVERNING BODY OF THE

CITY OF KANSAS CITY, KANSAS:

Section 1. That the boundaries of the City of Kansas

City, Kansas, are extended to include a piece of land in

Wyandotte County, Kansas, described as follows:

A22

In Sections 16-11-24, 15-11-24, 14-11-24, 13-11-24, 21-

11-24, 22-11-24, 23-11-24, and 24-11-24, in Wyandotte

and Shawnee Townships:

Detail description of lands annexed is omitted.

Section 2. This ordinance shall be in full force and

effect from and after its passage, approval, and publica-

tion in The Kansas City Kansan.

PASSED BY THE BOARD OF COMMISSIONERS OF

THE CITY OF KANSAS CITY, KANSAS, THIS 1ST DAY

OF MARCH, 1966.

/s/ Joseph H. McDowell

Mayor

STIPULATION

It is stipulated by and between the Debtor and the

Trustee that the Debtor did, some time during the year

1945, purchase the real estate described in Schedule B(5),

and has continuously since that time and to this date, oc-

cupied the same as a homestead with his wife and children;

that said real estate claimed exempt by debtor is an un-

platted tract of land consisting of approximately thirteen

and a fraction acres. That the City of Kansas City, Kansas

did on or about the 1st day of March, 1966, by its Ordinance

Number 45492 extend its corporate limits encompassing

the Debtor’s homestead hereinbefore referred to. That

said real estate is held in joint tenancy by the Debtor and

his wife, Reva.

/s/ Robert M. Kaplan

Attorney for Trustee

/s/ Wash H. Brown

Attorney for Debtor

A23

CONSTITUTION OF THE STATE OF KANSAS,

ARTICLE 15, SECTION 9:

“Homestead exemption. A homestead to the extent

of one hundred and sixty acres of farming land, or of

one acre within the limits of an incorporated town or

city, occupied as a residence by the family of the

owner, together with all the improvements on the

same, shall be exempted from forced sale under any

process of law, and shall not be alienated without the

joint consent of husband and wife, when that relation

exists; but no property shall be exempt from sale for

taxes or for the payment of obligations contracted for

the purchase of said premises, or for the erection of

improvements thereon: Provided, The provisions of

this section shall not apply to any process of law ob-

tained by virtue of a lien given by the consent of

both husband and wife: And provided further, That

the legislature by an appropriate act or acts, clearly

framed to avoid abuses, may provide that when it is

shown the husband or wife while occupying a home-

stead is adjudged to be insane, the duly appointed

guardian of the insane spouse may be authorized to

join with the sane spouse in executing a mortgage

upon the homestead, renewing or refinancing an en-

cumbrance thereon which is likely to cause its loss,

or in executing a lease thereon authorizing the lessee

to explore and produce therefrom oil, gas, coal, lead,

zine, or other minerals.”

KANSAS STATUTES ANNOTATED, ARTICLE 23.—

EXEMPTIONS, 60-2301:

“Homestead; extent of exemption. A homestead to

the extent of one hundred and sixty (160) acres of

A24

farming land, or of one acre within the limits of an

incorporated town or city, occupied as a residence by

the family of the owner, together with all of the im-

provements on the same, shall be exempted from

forced sale under any process of law, and shall not be

alienated without the joint consent of husband and

wife, when that relation exists; but no property shall

be exempt from sale for taxes, or for the payment of

obligations contracted for the purchase of said prem-

ises, or for the erection of improvements thereon. The

provisions of this section shall not apply to any process

of law obtained by virtue of a lien given by the con-

sent of both husband and wife. (L. 1963, ch. 303,

60-2301; Jan. 1, 1964)

KANSAS STATUTES ANNOTATED, ARTICLE 16.—

13-1602a.

“Annexation of adjacent territory; land outside county;

procedure; land where hospital maintained; duties of

city clerk. Whenever any land adjoining or touching

the limits of any city has been subdivided into blocks

and lots, or whenever any unplatted piece of land lies

within (or mainly within) any city, or any tract not

exceeding twenty acres is so situated that two-thirds

of any line or boundary thereof lies upon or touches

the boundary line of such city, said lands, platted or

unplatted, may be added to, taken into and made

a part of such city by ordinance duly passed: Pro-

vided, however, That no such land lying outside of the

county in which such city or a part thereof is located

may be added to or taken into such city unless pe-

titioned therefor, or consented thereto, in writing, by

the owners of a majority of the resident landowners in

A25

the tract or parcel of land proposed to be so annexed or

added to such city. Said ordinance shall describe the

platted lands by giving the name of the addition or

subdivision us platted, and by giving the metes and

bounds of the unplatted lands, with the section, town-

ship, range, and county in which the same are located.

In adding territory to any city, if it shall become

necessary for the purpose of making the boundary

line straight or harmonious, a portion of a piece of

land may be taken into such city, so long as such por-

tion of the piece taken in does not exceed twenty acres:

Provided further, however, That any city of the first

class having a population of more than 165,000 in-

habitants may add to, take in and make a part of such

city by ordinance duly passed any unplatted piece of

land or tract not exceeding sixty (60) acres if such

tract is so situated that two-thirds of any line or bound-

ary thereof lies upon or touches the boundary line

of such city: Provided, That lands owned by any

person, association or company not exceeding twenty

(20) acres in extent and upon a portion of which a

hospital is being maintained shall not be annexed for

any purpose without the consent of the owners of

such land: Provided further, That before the govern-

ing body of any such city shall approve such ordinance

the city clerk shall notify the county clerk and the

county superintendent in writing at least ten days be-

fore approval of said ordinance of the property pro-

posed to be taken into such city, describing said prop-

erty accurately by metes and bounds. (L. 1933, ch.

129, $1; L. 1953, ch. 96, §1; June 30.)

A26

KANSAS STATUTES ANNOTATED, ARTICLE 5,—

ADDITIONS, VACATION, AND LOT FRONTAGE

12-501. Petition for enlargement of boundaries. That

whenever any city desires to enlarge the limits thereof

from territory adjacent thereto, the governing body of

such city shall in the name of the city present a peti-

tion to the board of county commissioners of the

county in which the city is situated setting forth by

metes and bounds the territory sought to be so added

and asking said board of county commissioners to

make a finding as to the advisability of adding said

territory to said city. (L. 1929, ch. 109, $1; May 28.)

12-502. Proceedings on petition. Notice of the time

and place of said hearing, together with a description

of the property sought to be added to said city, and the

names of the owners thereof so far as can be as-

certained from the records of said county, shall be

published for three consecutive weeks in some news-

paper of general circulation in said city.

On the day set the board of county commissioners shall

proceed to hear testimony as to the advisability of

making such addition, and upon such hearing, if said

board of county commissioners shall be satisfied that

the adding of such territory to the city will be to its

interest and will cause no manifest injury to the per-

sons owning real estate in the territory sought to be

added, they shall so find; and thereupon the governing

body of such city by ordinance may enlarge the limits

thereof to include the territory so added: Provided,

That the boundary lines of no city shall be extended

to include lands not located in the county in which

such city is situated, but this restriction shall not

apply to cities now located in more than one county:

A27

Provided, That no such proceeding shall be necessary

when the territory sought to be added is subdivided

into lots and blocks, but in such cases the city shall

have power to add such territory to the city by or-

dinance: And further provided, No unplatted terri-

tory of over twenty (20) acres shall be taken into said

city against the protest of the owner thereof, unless

the same is circumscribed by platted territory that is

taken into said city and unless said tract to be taken

into such city shall be improved property receiving

city benefits and protection.

The board of county commissioners may for good

cause shown continue such hearing beyond the time

specified in the notice without further publication.

Application for adding separate parcels of territory

to said city may be made in the same petition, and

upon such application the board of county commis-

sioners may make findings as to the advisability of

adding any or all of such parcels as hereinbefore pro-

vided. The order of the board of county commis-

sioners shall be spread at length upon the journal of

proceedings of said board, and a certified copy thereof

recorded in the office of the register of deeds in such

couaty. (L. 1929, ch. 109, §2; May 28.)

12-502a. Right of appeal. Any owner of land sought

to be taken into the limits of a city under the pro-

visions of this act, who shall be aggrieved by the de-

cision of the board of county commissioners may ap-

peal to the district court of the same county in the

manner and method as now provided by section 19-223,

Revised Statutes of 1923. (L. 1929, ch. 109, §3; May

28.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.