Kansas AG Opinions — 1976

It is within the power of a joint city-county planning commission to require a dedication of property for pur- poses of flood control and drainage, prior to approval of a plat of real property.

The violation of K.S.A. 47-122, by permitting cattle or other livestock specified therein to run at large, is not a crime or misdemeanor for which a criminal prosecution will lie.

A motorized vehicle equipped with a 5 HP or less motor is treated as a motorcycle under Chapter 8, Article 1, and as a motor driven cycle under Chapter 8, Article 14 of the Kansas Statutes Annotated.

Compensation and salary for the probate judge is qualified by the population of the county in which he or she resides, and the amount therefor becomes effective on the date the change of population is reported pursuant to K.S.A. 11-101. * *

June 9, 1976 ATTORNEY GENERAL OPINION NO. 76-168 Ms. Elizabeth L. Young Executive Director Kansas Public Television Commission Suite 508 503 Kansas Topeka, Kansas 66603 Re: Statutes--Appropriation Acts--Item Veto Synopsis: The item veto power of the governor under Article 2, § 14…

An affidavit of equitable interest against specific real estate, which does not disclose the nature or amount of debt that is secured, should not be filed of record until the Register of Deeds is given the opportunity to review the security instrument to determine the amount of debt being secured and whether that debt is to be paid over a period greater than 90 days. Such information is absolutely necessary to determine the application of the Mortgage Re- gistration Laws. * * * *

Under 1976 House Bill 3112., a city may enact and pub- lish an ordinance authorized thereunder fixing the rate of the levy upon money, notes or other evidence of debt, or electing against such a levy in 1976. Said rate or election may become operative only in 1977 or any year thereafter, although the ordinance itself is effective and subject to referendum upon completion of publication in 1976.

The definition of obscenity found in 1976 Senate Bill No. 327 fully complies with the most recent definitive description thereof by the United States Supreme Court, in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Moreover, section 2(2)(b) is not unconstitutionally restrictive by virtue of its omission to include public and private libraries. * * *

A county which implements a county solid waste manage- ment plan on a county-wide basis must provide the ser- vices rendered thereunder within all cities which have not made timely elections to exempt themselves from the county plan. There is no statutory basis upon which the governing body of the city may be compelled to take legislative or administrative steps to meet any con- tractual obligation incurred by the county in its imple- mentation of the county plan. * * *

The decision to issue general obligation bonds under K.S.A. 19-15,116 is vested by law with the board of county commissioners, although a purely advisory elec- tion may be held upon the question, which is non- binding in any legal fashion. Said election may be authorized by the board of county commissioners in the exercise of county home rule powers under K.S.A. 19-191a(b).

The Real Estate Commission is lawfully empowered and under obligation to assist the Office of the Attorney General in its investigation of antitrust violations by certain licensees under its jurisdiction.

The Kansas Code of Procedure for Municipal Courts, K.S.A. 12-4101 et seq. provides no authority for the assessment by a municipal judge of a sum, in addition to the fine prescribed by the duly adopted schedule, consisting of the cost of preparation of a presentence report prior to sentencing disposition of an accused person found guilty in a municipal court.

When paying taxes by mail, the statutory deadline for payment is met if the postmark on the envelope carrying the return and remittance is on or before the due date. The deposit in the mail is constructive delivery on the date it is deposited. It is not necessary that the taxpayer physically deliver taxes to the tax collector. *

Board of trustees for county hospital established per K.S.A. 19-1801 et seq. is authorized to exercise control over the deposit and investment of unused or surplus bond proceeds, and any income earned therefrom must be applied to the hospital fund and expended as per the requirements of K.S.A. 10-131.

K.S.A. 19-2226 et seq. applies only to those counties having a population of more than 125,000 on May 25, 1925. **

Where a tax roll is made up showing a block of lots as one tract, which is given a single assessment and upon which taxes have become delinquent, it is prohibited at a later date to sell one lot, allocate to it a portion of the delinquent taxes, and to charge the back taxes remaining unpaid on the remainder of the lots. The whole tax liability, including penalties and interest, lies against each and every lot until paid. * * *

The owner who redeems real estate sold for delinquent taxes to the county and held for three years from date of sale must pay all taxes, penalties, interest accrued, costs and expenses of said sale and redemption. Such costs include every expense, including costs of adver- tising in which the redeemed lot is listed, incurred to the date of redemption.

A marshal of a city of the third class is vested with law enforcement powers only within the territorial limits of the municipality which commissioned the officer and has no general police power to arrest throughout the state, except when and as those police powers are ex- pressly extended in extraterritorial application by statute.

Smith County may combine ninety-eight thousand dollars ($98,000) worth of general obligation bonds heretofore issued pursuant to K.S.A. 19-15,116(c) with other authorized financing under K.S.A. 19-15,116 to build a jail facility costing one hundred fifty-eight thousand dollars ($158,000) without first submitting the question to a vote of the qualified voters.

Contracts entered into between State Park and Resources Authority and Aquamarine Inc. and Lighthouse, Inc., both original and all supplementals, reflect an intent by all parties to convey specific rights by such agreements. Tent and trailer pad rental authority was conveyed to Aquamarine, Inc. only by the supplemental agreements. Said agreements have expired and Aquamarine is therefore without authority to continue the operation of such activities.

Under K.S.A. 1975 Supp. 59-218, any person appointed to the position of full-time probate judge pro tem may not practice law in the county in which appointed or in any county to which the section applies, for the duration of the appointment.

The New Goods Public Auction Law requires the licensing of all persons who conduct auctions falling within the purview of said act within the state of Kansas. *

May 7, 1976 ATTORNEY GENERAL OPINION NO. 76- 151 Mr. Philip E. Winter Assistant County Attorney Lyon County Courthouse Emporia, Kansas 66801 Re: Taxation--Assessment--Exemption of Right-of-ways and Easements.' K.S.A. 1975 Supp. 79-210; 79-211, 79-408; 79-1701; and K.S.A. 79-1409;…

Moneys appropriated pursuant to ch. 9, § 7, L. 1975, for area vocational-technical school programs may be expended for costs of buildings and fixed equipment, so long as such funds are not used as matching funds for non-state- source funds and expended for such purposes jointly there- with. Proceeds from the levy authorized by K.S.A. 1975 Supp. 72-4420 may be expended for the construction of buildings and the purchase of school buses for vocational education programs.

The amenability of a person under the age of eighteen (18) years to the Kansas Juvenile Code remains unaffected by the marriage of such person. * * Dear Mr. Winter:

The governing body of the community mental retardation center established pursuant to K.S.A. 1975 Supp. 19-4001 et seq. is not subject to the Kansas cash basis law.

There is no legal basis for refund of a filing fee to a person who paid such fee and filed a declaration of intent to become a candidate for a public office which is subsequently abolished as an elective position. * *

Any person employed as private secretary to the state printer and paid from funds lawfully available therefor, through and until June 30, 1977, is a member of the unclassified service of the state civil service. Travel expenses of the state printer incurred in the perfor- mance of official duties of the office, in advising and conferring with Kansas state officials to improve the printing services of the state, are subject to K.S.A. 1975 Supp. 75-3216.

The Advisory Committee on Mexican American Affairs may lawfully engage in joint sponsorship of conferences dealing with programs and problems concerning Mexican Americans, and may make expenditures for publications offered as a part of its program of public education and dissemination of information concerning the problems of Mexican Americans.

The board of county commissioners may, in submitting a proposition to the electorate for approval of a levy under K.S.A. 68-5,100, specify in such proposition that the levy of not to exceed five mills shall be made annually for not to exceed a stated number of years.

Under regulations adopted pursuant to the Crime Control Act of 1973, and regulations promulgated thereunder and pub- lished at 41 F.R. 11714 on March 19, 1976, nonconviction criminal history information may be disseminated to city officers when such dissemination is for a purpose author- ized by state statute or city ordinance. Under provisions of the Manhattan Municipal Code relating to taxicab oper- ator licenses, however, dissemination beyond the Riley County Police Department is not required nor warranted, however, for the administration of the taxicab operator's licensing code of the City

The defendant in a criminal case is entitled to a trial de novo in the district court regardless of the nature of his plea in a court of limited juris- diction. The trial de novo permits a completely fresh determination of guilt or innocence.

A bus which is operated under contract with a board of education to transport students from the boundaries of that district to its schools may not operate within the boundaries of any other district when not under contract with such other district, utilizing the mark- ings and lighting equipment and warning devices which may lawfully be used only on school buses, i.e., vehi- cles operated by or under contract with a board of education for the transportation of students within the territory of the contracting district. *

With the enactment and upon the effective date of 1976 House Bill 3147, the board of trustees of the Johnson County Law Library is no longer prohibited by K.S.A. 1975 Supp. 19-1320 from entering into a contract with K-Bar Research, Inc., for computer terminal and data bank access service to be furnished in the Library, and from fixing and assessing charges for the services so furnished to eligible users of the Library.

An advisory body established by the mayor of a city, which is vested with no administrative powers of the city and which neither receives nor expends any public funds, and which is not supported in whole or in part by public funds, is not subject to the Kansas open meeting law. * * *

January 14, 1976 ATTORNEY GENERAL OPINION NO. 76- 14 Mr. Dan E. Turner City Attorney Legal Department 215 East 7th Street Topeka, Kansas 66603 Re: Cities--Streets and Ways--Parking Synopsis: The state may, in the exercise of its plenary legis- lative power, restrict parking upon …

The Deweze Big Bale Bus is a trailer which has a haul- ing capacity in excess of 6,000 pounds and must be registered.

K.S.A. 1975 Supp. 74-4940 requires that the lump sum payment due thereunder be made only within a reasonable time. The making of the required lump sum payment within 19 calendar days of the completion of contractual obli- gations is made within a reasonable time. *

A contract providing for periodic payments in future years, which expressly provides that such payments are not contractually required, but only that the city shall make its best efforts to budget and appropriate such funds, and which provides that no obligation is created for any funds in excess of those funds lawfully on hand and available for the purpose, does not violate the Kansas cash-basis law, K.S.A. 10-1101 et seq. * *

Unclaimed funds held by the clerk of the district court in actions which have been finally determined for more than two years are subject to escheat under K.S.A. 1975 Supp. 58-401 whereas monies held in pending action which have not been finally determined but in which no action has been taken are subject to escheat under K.S.A. 1975 Supp. 58-405.

The increased valuation of real property resulting from new improvements thereon may not be considered as a part of the value of new improvements which is required by K.S.A. 1975 Supp. 79-5006 to be considered separately in determining the additional aggregate levy authority and limitations permitted under that section. * *

A board of education is not required to charge tuition for students attending a school in its district while residing in another district.

Submission to the voters of a question for adoption of the modified mayor-council form of government authorized by 1976 Senate Bill No. 662 does not preclude submission of other questions at the same time providing for adop- tion of one or more of the seven alternative forms of government available to the City of Topeka.

Foreclosure and sale of real estate for delinquent taxes, interest and penalties are mandatory. Laws provide for proration to taxing districts where tax sale proceeds are less than the tax. There is a severe penalty statute prohibiting the release, dis- charge, remittance and commutation of taxes. *

A township board may accept a gift of property for use as a community building, but may not do so until acquisi- tion of the property by the .township is approved by the electorate of the township pursuant to K.S.A. 80-104. * *

Prior to the creation of a lateral, joint or main sewer district for the purpose of making preliminary plans, surveys and feasibility studies and the like, under the third paragraph of K.S.A. 19-2704 in a county declared an urban area, the notice by publication and mailing required by K.S.A. 1975 Supp. 19-2704a, as referenced in the last paragraph of K.S.A. 1975 Supp. 19-2704, must be given. *

License fees prescribed by paragraphs 3.3 and 3.4 of Ordinance No. 83 of the City of Lansing for mobile home park operators do not violate the equal protection clause of the United States Constitution or the Kansas Constitution. * *

A creditor petitioning for "Refusal of Letters of Administration" should be represented by an attorney.

A member of a nonprofit corporation organized to provide mental health and/or retardation services under K.S.A. 19-4007 is not prohibited by the Kansas general conflict of interest law from renting real property to said cor- poration for the operation of a mental health and/or retardation center thereon.

A member of a board of education of a unified school district is not legally ineligible thereby from seek- ing election to and serving in the office of county commissioner.