IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,168
BIGS, et al.,
Appellees,
v.
CITY OF WICHITA, KANSAS,
Appellant.
SYLLABUS BY THE COURT
1. Essentially, the State and cities have concurrent concerns and authority as to local matters. Where the legislature is silent as to a local matter, a city may address it by enacting an ordinary ordinance. A city may legislate on such matters, providing the city ordinance does not conflict with a state statute. If there is a conflict, the city can exempt itself from the statute by charter ordinance. However, where a statute applies uniformly to all cities, the statute controls and the city cannot exempt itself out by charter ordinance.
2. The legislature can preempt a field by clearly manifesting its intent to do so in a statute or by enacting a statute which is uniformly applicable to all cities.
3. The provisions of the Club and Drinking Establishment Act, K.S.A. 41-2601 et seq., are uniformly applicable to all cities in counties which elect to come under the Act. Thus, the Act is applicable uniformly to all cities within the meaning of Article 12, § 5 of the Kansas Constitution.
4. The payment of a tax in order to avoid the forfeiture of the payor's right to continue doing business renders the payment of the tax involuntary.
5. A licensee who involuntarily pays a fee exacted pursuant to an enactment that is void and without effect is entitled to a refund.
6. The record is examined and it is held that the district court did not err in (1) finding Charter Ordinance No. 105 and resulting resolution to be null and void, (2) holding that the excess fees charged by the city were recoverable, (3) certifying a class action; and (4) awarding attorney fees. The district court erred in holding that the city was equitably estopped from asserting the statute of limitation as a defense.
Appeal from Sedgwick district court; WILLIAM D. RUSTIN, judge. Opinion filed June 1, 2001. Affirmed in part, reversed in part, and remanded with directions.
Sharon L. Dickgrafe, assistant city attorney, argued the cause, and Gary E. Rebenstorf, city attorney, was with her on the briefs for appellant.
David R. McClure, of Fettis & McClure, of Wichita, argued the cause, and Everett C. Fettis, of the same firm, was with him on the brief for appellees.
Rebecca S. Rice, of Topeka, was on the brief for amicus curiae Kansas Retail Liquor Dealers Association.
Ezra J. Ginzburg, assistant attorney general, was on the brief for amicus curiae Kansas Department of Revenue, Division of Alcoholic Beverage Control.
W. Robert Alderson, of Alderson, Alderson, Weiler, Conklin, Burghart & Crow, L.L.C., of Topeka, was on the brief for amicus curiae Kansas Beer Wholesalers Association.
Robert E. Duncan, II, general counsel, of Topeka, was on the brief for amicus curiae Kansas Wine and Spirits Wholesalers Association.
Sandra Jacquot and Larry Kleeman, of Topeka, were on the brief for amicus curiae League of Kansas Municipalities.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Plaintiffs (Licensees) are private clubs and drinking establishments that brought this action against the City of Wichita (City) seeking refunds of excess liquor license fees collected by the City between July 1, 1988, and November 28, 1995. The district court certified a class, denied the City's motions for summary judgment, and granted Licensees' cross-motion for summary judgment. The City appealed. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
In ruling on the summary judgment motions, the trial court made the following findings of facts:
"1. Plaintiffs and the class members are private clubs and/or drinking establishments located within the City limits of Wichita, Kansas, and licensed by Defendant to conduct business within the corporate City limits.
"2. Defendant is a municipal corporation.
"3. Plaintiffs and the class members bring this action in restitution to recover excess liquor license fees charged and collected by Defendant from them between July 1, 1988 and November 28, 1995.
"4. The Plaintiffs and the class members at all times material herein, were required to obtain a city liquor license and pay a license fee established by Defendant in order to do business.
"5. On August 28, 1984, Defendant adopted Charter Ordinance 96 pursuant to its Home Rule Authority. The charter ordinance exempted the City of Wichita from the provisions of K.S.A. 41-2622.
"6. On July 7, 1987, Defendant adopted Charter Ordinance No. 105 pursuant to its Home Rule Authority. The Charter Ordinance exempted the City of Wichita from the provisions of K.S.A. 41-2622 and repealed Charter Ordinance 96.
"7. Pursuant to Charter Ordinance No. 105, on December 22, 1987, Defendant adopted a Resolution which established licensing fees for clubs and drinking establishments in excess of those set forth in K.S.A. 41-2622.
"8. Prior to passage of the Resolution on December 22, 1987, Defendant held public hearings in which it represented to licensees that an increase in license fees was necessary to help offset its cost of regulation and enforcement of liquor licenses.
"9. On July 1, 1988, K.S.A. 41-2622 was amended by the state legislature. By operation of law, the amendment rescinded Charter Ordinance No. 105 and the enacting Resolution of December 22, 1987 in so far as they conflicted with it.
"10. From July 1, 1988 until November 28, 1995, Plaintiffs and the class members annually received licenses from the City of Wichita and paid licensing fees in excess of those set forth in K.S.A. 41-2622.
"11. On July 12, 1995, the Sedgwick County District Court in City of Wichita, Kansas v. Ariel Martinez Gonzalas, 95 MC 54 (1995), ruled that the City Resolution of December 22, 1987 which created a fee schedule in excess of $250.00 was null and void in so far as it authorized the assessment and collection of liquor licenses in excess of $250.00.
"12. Following the Sedgwick County District Court decision in City of Wichita, Kansas v. Ariel Martinez Gonzalas, supra, the City appealed the decision to the Kansas Supreme Court which dismissed the appeal because the issue presented was not of state-wide interest.
"13. Thereafter, on November 28, 1995, the City Council passed Resolution R-95-549 which set the schedule for city license fees at $250.00. The Agenda Report and the Minutes of the City Council Meeting state that after the adoption of Charter Ordinance No. 105 and the enacting Resolution on December 22, 1987, state law was changed as to cities such as Wichita which were charging more than the statutory amount set forth in K.S.A. 41-2622 for local license fees. Resolution R-95-549 was adopted in response to Judge David Kennedy's ruling in City of Wichita, Kansas v. Ariel Martinez Gonzalas, 95 MC 54.
"14. Between July 1, 1988 and November 28, 1995, Defendant stated on the License Application forms prepared by Defendant the amount of the license fee required to be paid in order to obtain a city liquor license.
"15. Neither the Defendant nor any Plaintiff or class member knew prior to November 28, 1995, that the 1988 amendment to the state law had rescinded by operation of law the Charter Ordinance No. 105 and the enacting Resolution.
"16. Defendant's continuing acts of charging and collecting license fees in amounts in excess of the maximum amount set forth in K.S.A. 41-2622(b) between July 1, 1988 and November 28, 1995, was based upon Defendant's mistaken belief that Charter Ordinance No. 105 and the enacting Resolution had not been rescinded by the 1988 amendment to state law.
"17. Plaintiffs and members of the class continued to pay the license fee amounts required by Defendant between July 1, 1988 and November 28, 1995, under the mistaken belief that Charter Ordinance No. 105 and the enacting Resolution remained in effect and thus, they were performing a duty to the Defendant.
"18. In addition to passing Resolution R-95-549, the City refunded a portion of fees collected in excess of $250.00 to some private clubs and drinking establishments."
The City raises six issues on appeal:
1. Was the City's licensing ordinance a valid exercise of its home rule authority?
2. Were Licensees' claims barred by the volunteer rule?
3. Were Licensees' claims barred by the statute of limitations?
4. Was the class certification appropriate?
5. Were Licensees entitled to prejudgment interest?
6. Should the attorney fees be based upon the amount of the judgment rather than the amount refunded to class members?
The City first argues that the adoption of Charter Ordinance No. 105, and the subsequent resolution establishing licensing fees in excess of those contained in K.S.A. 41-2622, was a valid exercise of the City's home rule authority.
On appeal, the City states that no factual issues exist with regard to the question of home rule authority so that the issue was appropriate for summary judgment. It should be noted that the City does dispute the second sentence of the trial court's finding of fact No. 9 - "By operation of law, the amendment rescinded Charter Ordinance No. 105 and the enacting Resolution of December 22, 1987 insofar as they conflicted with it." This "finding," however, actually is a conclusion of law. The City contends that the district court entered summary judgment for the wrong party as a matter of law.
The undisputed facts relevant to the question of the City's home rule authority may be briefly stated: Licensees were required to obtain a liquor license from the City and pay a license fee in order to do business. By Charter Ordinance No. 105 and accompanying resolution, which became effective in December 1987, the City exempted itself from the fee limitations in K.S.A. 41-2622, a section of the Club and Drinking Establishment Act, K.S.A. 41-2601 et seq., (Act) and set fees exceeding the statutory maximums. On July 1, 1988, amendments to K.S.A. 41-2622 went into effect. The trial court was of the opinion and the parties agree that the post-amendment statute is uniformly applicable.
In July 1995, a Sedgwick County District Court held that the City's charter ordinance fee schedule was null and void. On November 28, 1995, the City, in response to the district court's holding, passed Resolution R-95-549, which set its liquor license fees at $250, in accordance with the statutory limit.
From July 1, 1988, until November 28, 1995, Licensees paid annual liquor license fees that exceeded the $250 maximum set forth in K.S.A. 41-2622(b).
The district court reached the following conclusions of law on the question of the City's authority to charge liquor license fees in excess of those set forth in K.S.A. 41-2622:
"1. The 1988 amendment to K.S.A. 41-2622 rendered the Club and Drinking Establishment Act uniform as to all counties and cities within Kansas.
"2. K.S.A. 41-2622(c) as it presently reads is uniformly applicable to all municipalities and counties and since the Club and Drinking Establishment Act is uniform, a city may not enact a conflicting charter ordinance.
"3. A city ordinance cannot stand if it is in 'actual conflict' with a state statute that is uniformly applicable to all cities or counties.
"4. Following the 1988 amendment to K.S.A. 41-2622 of the Club and Drinking Establishment Act, Charter Ordinance No. 105 and the enacting Resolution adopted on December 22, 1987, came in 'actual conflict' with the $250.00 limitation set forth in K.S.A. 41-2622(c).
"5. Home rule legislation is prohibited in a field of law in which there is a state statute uniformly applicable to all cities or counties. A city or county may not exercise home rule to opt out of a uniform law by charter ordinance; the local ordinance may be contrary to, or in conflict with, a state law only where such state law has a non-uniform application throughout the state.
"6. A city's home rule power to adopt charter ordinances is limited where state law applies uniformly to all cities of the same class, limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction.
"7. The fact that a city or county may have the option to allow liquor by the drink within their jurisdictions does not make the Club and Drinking Establishment Act non-uniform. The Act is uniformly applicable to all cities which elect to come under the Act.
"8. The prohibitions or limitations on maximum city license taxes or fees upon clubs and drinking establishments in K.S.A. 41-2622 (b) and (c) are not subject to a city's home rule or charter ordinance powers pursuant to Article 12, Section 5, of the Kansas Constitution.
"9. Pursuant to K.S.A. 41-2631 any city ordinance which conflicts with the Club and Drinking Establishment Act is null and void.
"10. K.S.A. 41-2631 expresses a specific legislative intent to make the 1988 amendment to K.S.A. 41-2622 (b) and (c) applicable to any pre-existing city ordinance to the contrary, and a further legislative intent that such pre-existing ordinance to the contrary is rescinded by operation of law.
"11. The City Resolution of December 22, 1987, creating a fee schedule in excess of $250.00 is rescinded pursuant to K.S.A. 41-2631 in so far as it authorizes the assessment and collection of liquor license fees in excess of $250.00."
In summary, the trial court was of the opinion that the 1988 amendments to K.S.A. 41-2622 rendered the Act uniformly applicable to all cities. The trial court expressly rejected the City's contention that the liquor-by-the-drink options available to counties under the Act prevented the Act from becoming uniformly applicable with the 1988 amendments to K.S.A. 41-2622. Because the fee schedule established by the City's Charter Ordinance No. 105 was inconsistent with the Act, as amended in 1988, the trial court held the City's charter ordinance was null and void. Moreover, the trial court reasoned the City's charter ordinance was expressly nullified by K.S.A. 41-2631.
The City first argues that the Act was not uniform in 1987 when the City's charter ordinance became effective. The City's position does not differ from that of the trial judge. It is implicit in the trial court's conclusion that the 1988 amendments to K.S.A. 41-2622 rendered the Act uniformly applicable that the Act was nonuniformly applicable until amended in 1988.
Where the City takes issue with the trial court's decision is in the effect of the 1988 legislative amendments to K.S.A. 41-2622. The City contends that legislative amendments to a portion of an enactment, such as the 1988 amendment of K.S.A. 41-2622, are not effective to repeal a charter ordinance under Art. 12, § 5(c)(4). Moreover, according to the City, the 1988 amendment of K.S.A. 41-2622 did not render the Act uniformly applicable because K.S.A. 41-2642 and 41-2643 allow counties to determine whether and what kind of drinking establishments will be permitted therein. The City also urges the court to adopt its view that some legislation proposed but not passed in 1999 is evidence that the Act is nonuniformly applicable. With regard to K.S.A. 41-2631, the City's position is that the legislature cannot preempt the home rule power of cities by passage of a simple statute.
The issues are matters of law that involve interpretation of statutory and constitutional provisions. There are no disputes as to material facts relevant to the home rule questions. This court's review is unlimited.
In 1988 the legislature amended K.S.A. 1987 Supp. 41-2622 by deleting the second subpart of subsection (b):
"(b) In addition to the fee provided by subsection (a):(1), any city where the licensed premises of a club or drinking establishment are located or, if such licensed premises are not located in a city, the board of county commissioners of the county where the licensed premises are located shall may levy and collect an annual occupation or license tax from the licensee in an amount equal to not less than $100 nor more than $250; or
(2) in any county having a population of more than 160,000 and not more than 185,000 and in any county in which there are located the premises of not less than 75 clubs and drinking establishments, any city located within the county in which any such licensed premises are located or, if such licensed premises are not located within a city, the board of county commissioners of such county may levy and collect an annual occupation or license tax from the licensees in an amount not to exceed $250." L. 1988, ch. 165, § 5.
It is the deletion of the second paragraph of subsection (b) that, in the trial court's view, rendered the Act uniformly applicable. Art. 12, § 5(c)(4) provides: "Each charter ordinance . . . may be repealed . . . by enactments of the legislature applicable to all cities." The City's position is that an amendment to existing legislation is not an "enactment" within the meaning of Art. 12, § 5(c)(4). In the City's view, only passage of all new statutes that comprise an act would constitute an enactment within the meaning of the constitutional provision. Applying this theory to the circumstances at hand would yield the following results: The legislature could have repealed Charter Ordinance No. 105 by passing a new act consisting of the amended version of K.S.A. 41-2622 and a restatement of the other, unchanged statutes that make up the Act. The legislature failed to repeal Charter Ordinance No. 105 because in enacting amendments to K.S.A. 41-2622 it failed to restate the other, unchanged statutes that make up the Act. In practice, the re-enactment of unchanged statutes, which the City posits, would not occur. The 1988 amendments to K.S.A. 1987 Supp. 41-2622 typify the legislature's customary method of enacting amendments. The amendments to K.S.A. 41-2622 are set out in Section 5 of Chapter 165, which was Senate Bill No. 598. Other sections of Chapter 165 are amendments to other acts. The title of the bill declares its subject, describes its contents, and, for the purpose of this discussion, illustrates the typical method of amending statutes:
"AN ACT concerning alcoholic beverages; relating to fees for certain licenses; concerning farm wineries; relating to certain prohibited acts with regard to persons under 21 years of age and penalties therefor; amending K.S.A. 21-3610 and K.S.A. 1987 Supp. 21-3610a, 41-308a, 41-310, 41-719, 41-727, 41-2622 and 41-2702 and repealing the existing sections; also repealing K.S.A. 1987 Supp. 41-2721." L. 1988, ch. 165.
The legislature's practice conforms to the state constitutional provision requiring that revival of a law be accomplished by the new act containing the entire revived act but permitting amendments to be made section by section. Art. 2, § 16.
The case law cited by the City for the proposition that only an all-new act can repeal a charter ordinance adds no support. Those cases pre-date the Home Rule Amendment. None lends support to the notion that the legislature's amending a statute without re-enacting all the statutes in the act prevents the amendment from being an enactment for the purpose of cities' home rule analysis.
Although stating that this is an issue of first impression, the City cites State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 955 P.2d 1136 (1998), as if that case settled the proposition that the 1988 amendments to K.S.A. 41-2622 would not invalidate Charter Ordinance 105. Because the legislation was not applicable to all cities, there was no doubt that it did not repeal the charter ordinances. 264 Kan. at 329. State ex rel. Tomasic lends no support to the City's argument that amendments to existing legislation do not constitute enactments of the legislature as expressed in the constitutional provision.
The City's construction of Art. 12, § 5(c)(4) as not permitting repeal of a charter ordinance by legislative amendment of existing legislation lacks practicable application and case law support. Thus, we find no merit in the City's argument.
The City's other argument against repeal of its charter ordinance is that the nonuniform applicability of K.S.A. 41-2642 and K.S.A. 41-2643 of the Act was not affected by the 1988 amendments to K.S.A. 41-2622.
The county-by-county election provided by K.S.A. 41-2642 and K.S.A. 41-2643 results in cities being treated differently from one another under the Act depending on location within or without a county that has elected to allow the sale and service of liquor by the drink. Hence, according to the City, the Act is not uniformly applicable.
The basic scheme of cities' home rule was outlined in Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 673, 8 P.3d 701(2000):
"In 1961, the home rule amendment to the Kansas Constitution took effect and empowered cities to determine their local affairs. Kan. Const. art. 12, § 5(b). The legislature retains power over statewide matters. Hence, home rule power does not authorize cities to act where the state legislature has precluded municipal action by clearly preempting the field with a uniformly applicable enactment. Generally speaking, where the legislature has not preempted the field with a uniformly applicable enactment, cities may exercise their home rule power by one of two means. Where there is a nonuniform legislative enactment that is in conflict with the action a city wants to take, a charter ordinance may be used to exempt the city from the legislative enactment. Kan. Const. art. 12, § 5(c). Where there is no legislative enactment in conflict with the local action, an ordinary ordinance will suffice."
Home rule became effective July 1, 1961, and this court first construed and applied the provisions of Ks. Const. art. 12, § 5(c) in Claflin v. Walsh, 212 Kan. 1, 509 P.2d 1130 (1973). In Claflin, we noted that prior to adopting home rule the cities were severely limited in their power to control local matters. Home rule abolished the "Dillon Rule" under which cities were considered creatures of the legislature and could only exercise that authority conferred by statute. See Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631 (1972). After July 1, 1961, cities were no longer dependent upon the legislature for authority to determine local affairs. As noted in Claflin, home rule is not without limitation. Essentially, the cities and state have concurrent concerns and authority as to local affairs. Where the legislature is silent as to a local matter, a city may address it by enacting an ordinary ordinance. A city may legislate on the same subject providing the city ordinance does not conflict with a state statute. If there is a conflict, the city can opt out of the statute by enacting a charter ordinance. However, where a statute applies uniformly to all cities, the city cannot opt out by charter ordinance, and such ordinance is void.
The legislature has always been able to preclude city action by preemption. The intent to reserve exclusive jurisdiction for the State to regulate in an area cannot be implied but must be clearly manifested by state law. City of Junction City v. Griffin, 227 Kan 332, 607 P.2d 459 (1980). In Griffin, this court noted the impact home rule had on State preemption:
"The grant of home rule power to cities under Article 12, § 5 of the Kansas Constitution has therefore added a new dimension to be considered in determining whether the legislature has occupied a field. Legislative intent to preempt a field is alone insufficient. It is now necessary to examine the provisions of the State enactment to determine whether the constitutional standard of uniform application to cities has been met. If not uniform, legislative intent as expressed within the enactment will not overcome the constitutional requirement for uniform application. Clark v. City of Overland Park, 226 Kan. 609, 602 P.2d 1292 (1979). The legislature may preempt the constitutional powers of cities only in the manner prescribed in the constitution. 'As between the will of the people expressed in the constitution, and that expressed in the statute, the former always prevails.' State, ex rel. Goodin v. Thoman, 10 Kan. 191, 197 (1872)." 227 Kan. at 336.
Following the adoption of home rule, the legislature can preempt the field either by enacting a uniformly applicable statute or by stating in the statute that the power to regulate is vested exclusively in the state, and any ordinance in conflict with or contrary to the statute shall be null and void. Here, we are concerned with the former and not the latter.
The City relies on Home Builders Ass'n v. City of Overland Park, 22 Kan. App. 2d 649, 921 P.2d 234, rev. denied 260 Kan. 993 (1996). Home Builders was an appeal by the city from the trial court's entry of partial summary judgment invalidating municipal ordinances that levied excise tax on platting. The Court of Appeals reversed. At issue was whether the 1992 amendment to K.S.A. 12-187 made it nonuniform, which rendered the local retailers' enactment subject to the charter ordinance home rule authority of the city.
K.S.A. 1995 Supp. 12-187(a)(2) was added by the legislature in 1992. L.1992, ch. 279, § 1, provides:
"The governing body of any city located in any county which does not impose a countywide retailers' sales tax pursuant to paragraph (5) of subsection (b) may submit the question of imposing a retailers' sales tax at the rate of .25%, .5%, .75% or 1% and pledging the revenue received therefrom for the purpose of financing the provision of health care services, as enumerated in the question, to the electors at an election called and held thereon. The tax imposed pursuant to this paragraph shall be deemed to be in addition to the rate limitations prescribed in K.S.A. 12-189, and amendments thereto. As used in this paragraph, health care services shall include but not be limited to the following: Local health departments, city, county or district hospitals, city or county nursing homes, preventive health care services including immunizations, prenatal care and the postponement of entry into nursing homes by home health care services, mental health services, indigent health care, physician or health care worker recruitment, health education, emergency medical services, rural health clinics, integration of health care services, home health services and rural health networks." (Emphasis added.)
Other statutes in the enactment established four classes of cities for tax purposes, K.S.A. 1995 Supp. 12-188, and prescribed the retailers' sales tax rates applicable to each class of cities, K.S.A. 1995 Supp. 12-189.
Reading the statutes together, the Court of Appeals concluded that the enactment was not uniformly applicable, thus permitting the cities to act:
"As the City and the League point out, K.S.A. 1995 Supp. 12-187(a)(2) has the effect of treating cities within the four classes of K.S.A. 1995 Supp. 12-188 nonuniformly depending upon whether the county in which a particular city sits has enacted the retailers' sales tax in K.S.A. 1995 Supp. 12-187(b)(5). Take, for instance, a class B City under K.S.A. 1995 Supp. 12-188. According to K.S.A. 1995 Supp. 12-189, 'the rate of any class B city retailers' sales tax shall be fixed in the amount of .25%, .5%, .75%, 1%, 1.25%, 1.5%, 1.75% or 2%.' However, class B cities sitting in a county which has not enacted a countywide retailers' sales tax pursuant to K.S.A. 1995 Supp. 12-188(b)(5) may submit the question of an additional retailers' sales tax to their electors. K.S.A. 1995 Supp. 12-187(a)(2). Thus, it appears the legislature, pursuant to the 1992 amendment to K.S.A. 12-187(a), is treating cities of the same class within the local retailers' sales tax enactment nonuniformly. By treating cities within the same class nonuniformly, the legislature has opened up the local retailers' sales tax enactment to home rule authority." 22 Kan. App. 2d at 668.
Licensees direct the court's attention to principles set out in Moore v. City of Lawrence, 232 Kan. 353, 654 P.2d 445 (1982). Moore was an appeal by the city from a declaratory judgment. The trial court found that certain sections of the city code were invalid because they conflicted with K.S.A. 12-705b, which was part of a uniformly applicable enactment pertaining to city planning and subdivision regulations. 232 Kan. at 354. This court agreed. Application of the enactment to any city was optional, which gave rise to the principal question:
" It is clear that initially these statutes are not uniformly applicable to all cities as they provide an optional procedure which may be adopted by any city as a means of governing matters pertaining to city planning and subdivision regulations. However, after careful examination of these provisions we are convinced the legislature intended these statutes to be uniformly applicable to those cities which elected to adopt the planning commission procedure provided by 12-701 et seq. While the application of the statutes may be optional, it is clear that once a city chooses to adopt this method the legislature intended for those statutes controlling the planning commission procedure to be binding. These statutes are lengthy and detailed, explicitly delineating the respective powers and duties of the planning commission and governing body of the city. A comprehensive scheme for the adoption of subdivision regulations and approval of subdivision plats is further provided. If each city which elected to create a planning commission under the provisions of 12-701 et seq., were allowed, by way of charter ordinance, to determine which of the provisions were not applicable to that city, the purpose and effect of the statute, to provide a comprehensive method for the governance of city planning and subdivision regulation, would be seriously impaired. We do not think such a result was intended by the legislature and