Kansas AG Opinions, 1976

February 23, 1976 ATTORNEY GENERAL OPINION NO. 76-69 Mr. Kenneth W. McClintock Morris County Attorney 418 East Main Street Post Office Box 224 Council Grove, Kansas 66846 Re: Cities--Ordinances--Radio Receiving Equipment Synopsis: Ordinance No. 1530 of the City of Council Grove c…

A township fire district organized under K.S.A. 80-1540 et seq. is obliged to furnish fire protection service to all inhabitants of the district, and not only to those persons able and willing to execute service con- tracts for such service. Service by publication is permitted by K.S.A. 38-810 as a permissible method of serving summons under K.S.A. 38-820.

There is no statutory authority for the judge of the City Court of Pittsburg, or for the marshal of that court, to appoint a deputy marshal to whom may be entrusted the duties and responsibilities of the marshal. *

There is no conflict between the Kansas public records law, K.S.A. 45-201, and the Family Educational Rights and Privacy Act of 1974, commonly known as the Buckley Amendment, as applied to records maintained by insti- tutions under the jurisdiction of the State Board of Regents, for the reason that no state law requires the keeping and maintenance of records regarding students within the ambit of the federal act.

The Legislature may not provide for the incorporation of cities by any law other than one which is a general law and applicable to all cities. H.B. 2895 is not, and thus, plainly does not meet the requirements of Article 12, § 5(a) of the Kansas Constitution. *

A zoning ordinance which excludes massage parlors from the classification of "home occupation" is not unreason- able on its face, as the "home occupancy" is defined in Ordinance No. 2512 of the City of Winfield. However, a requirement in said ordinance that operators of massage '

K.S.A. 19-3610(b) authorizes the board of county commissioners to submit thereunder to the voters the question whether a levy in excess of five mills, but not exceeding seven mills, may be levied for the operation of a fire district organized under K.S.A. 19-3601 et seq., and when the electors approve a pro- position authorizing such increased levy in "any year," a further election is not required in each subsequent year to authorize such increased levy.

Both the original and successor members of the govern- ing boards of multi-county facilities established under K.S.A. 19-4001 et seq. are to be appointed by the selec- tion committee established pursuant to K.S.A. 19-4002, by appointment thereto of two members by the chairman of the board of county commissioners of each partici- pating county. *

The board of county commissioners of any county is authorized to make a levy of not exceeding two mills for the establishment, operation and maintenance of an emergency medical services program pursuant to K.S.A. 1975 Supp. 65-4302, upon approval of such levy by the voters thereof.

Senate Bill 740 does meet the constitutional require- ments of Furman v. Georgia in providing for a mandatory sentence of death upon conviction of murder in the first degree. *

U.S.D. #512 does not constitute a "city unified school district" for purposes of K.S.A. 72-8213(b). The board of education of U.S.D. #512 may not order the closing of three elementary schools located in the Osage, Hickory Grove, and Corinth areas of that district without first submitting the proposition at an election or through a pe- tition to the appropriate electors of each school pursuant to either K.S.A. 72-8213(a) or K.S.A. 1975 Supp. 72-8213a. * Dear Mr. Vratil:

Under K.S.A. 25-3304(b), a registered voter may file a written declaration with the county election officer changing a declared party affiliation to that of non- affiliation.

Section 1 of H.B. 2731 may affect the ability of certain associational organizations of persons joined together for common purposes of political expression and communica- tion to serve the purposes for which they were organized, and if so, the procedural requirements of the section may be open to the most serious constitutional First Amendment objections. *

The water purchase contract no. 76-1 dated January 5, 1976, between the State of Kansas by and through the Water Resources Board, and Kansas Gas and Electric Company and Kansas City Power and Light Company, is invalid and unenforceable, by reason of violations of K.S.A. 1975 Supp. 46-233(a) in its making and execution. *

The due process procedure law, K.S.A. 1974 Supp. 72-5436, as amended by Chapter 373 of the 1975 Session Laws, does not apply to teachers of an area vocational-technical school governed by a board of control, as provided for and defined by K.S.A. 72-4412(c).

The Judge of the Magistrate Court of Reno County, Kansas, elected in November, 1974, was elected to a term of four years, and there exists no position to be filled by election at the general election in November, 1976. *

House Bill 2988, which proposes to authorize any county which has made a levy pursuant to K.S.A. 19-1569, since repealed, for the purpose stated in that provision "for the purpose of acquiring a site, building, furnishing and equipping of a courthouse and jail" for the purpose of repair and remodeling of an existing facility, seeks to authorize the use of proceeds of a tax levied for a specific purpose, to be expended for a purpose other than for which the tax was levied, in violation of Article 11, § 5 of the Kansas Constitution.

The Register of Deeds must file and index liens on growing crops, under the above statutes as amended, in the land records for the land upon which the crops are located as well as in the alphabetical records under the name of the owner of said crops.

The privilege extended to military personnel in acquiring resident status for tuition purposes at state community junior colleges is inapplicable to those individuals confined at the Disciplinary Barracks on the Fort Leavenworth military reservation.

A private banking corporation, which builds a court- house and office building, with parking facilities, on United States Government land, but which by contract will retain all right, title and interest in such improvements, including the right to possess, rent and manage until paid in full, shall have its property placed on the tax rolls as tangible personal property pursuant to K.S.A. 79-328, in the county where located.

The Kansas filled milk statute and the Kansas Filled Dairy Products Act is not unconsitutional as applied to Milnot, and the determination whether it constitutes a prohibited filled dairy product rests with the Kansas Dairy Commissioner.

The Republican River is a non-navigable river. It is the law of this state that owners of land riparian to non-navigable streams or rivers own the bank and bed of such streams or rivers to the center thereof. * *

A county may by charter resolution exempt itself from K.S.A. 19-1878, and provide substitute and additional provisions in lieu thereof, and obligations issued pursuant to such charter resolution will be approved by this office as issued under lawful authority.

A savings and loan association which has its home office in one county and a branch office in another county is a savings and loan association which is located in each such county within the meaning of K.S.A. 17-5002(b), and idle funds of the county in which the branch office is located may be invested with such savings and loan association in and through its branch office.

K.S.A. 12-1225, which describes the powers of directors of library districts organized under K.S.A. 12-1236 et seq., does not authorize the directors to obtain loans for such library from the federal government, unless and until additional legislative authority is furnished.

K.S.A. 21-3725 does not clearly distinguish between the intentional manipulation, alteration, destruction or removal of any signal device enumerated therein which is permissible, such as intentional conduct by persons acting properly and within the express scope of their employment, and intentional manipulation, alteration, destruction and removal which is performed for wrongful purposes. K.S.A. 21-3726 does not clearly specify whether it is limited to motor vehicle traffic control devices, or whether it extends also to devices for the control and direction of railroad, aircraft and watercraft

The Kansas Homestead Tax Relief Law, as amended in 1975, which grants advalorem tax relief to "certain female persons fifty (50) years of age and over who are the surviving spouses of husbands who died during marriage, who own or rent their own homestead, so long as they remain unmarried", but which does not grant similar tax relief to widowers, single men and women, does not violate the Kansas and Federal constitutional provisions which prohibit the granting of discriminatory privileges and immunities. *

House Bills 2083 and 2848, insofar as either may operate to shorten the terms of certain present members of the Board of Public Utilities of Kansas City, Kansas, and require those terms to be filled by election prior to the expiration of the terms as provided by law at the time said members were appointed, are not ex post facto laws, if enacted, and are within the constitu- tional power of the legislature. *

K.S.A. 65-2872 prohibits licensed chiropractic physicians from "performing any surgery." This prohibition was correctly interpreted by Attorney General John Anderson, Jr., in 1960 to prohibit chiropractic physicians from the withdrawal of blood samples .from a living human being by needles or other instruments in any procedure entail- ing the penetration of human tissue. Neither a chiro- practic physician nor nurses, assistants or other employees thereof are authorized to perform surgery, for it is excluded from the practice of chiropractic medicine by the Kansas Healing Arts Act.

There , exists no present basis upon which to conclude purely as a matter of law that the State of Kansas may or may not be liable for injuries suffered by any person, minor or adult, resulting from side effects of contra- ceptive pills furnished by a family planning center operating under K.S.A. 25-501, or as amended by House Bill 2676.

When zoning land within the three-mile limit pursuant to K.S.A. 12-715b, the city may not impose require- ments such as building permits and setback regulations upon residences and other accessory buildings on tracts of land in excess of three acres which are used exclu- sively for agricultural purposes. *

February 5, 1976 ATTORNEY GENERAL OPINION NO. 76- 37 Leonard J. Dix Rooks County Attorney Rooks County Courthouse Stockton, Kansas 67669 RE: K.S.A. 79-3101 et seq. Synopsis: Where an instrument, which would assign all right, title and interest in an agreement for sale and purchas…

February 2, 1976 ATTORNEY GENERAL OPINION NO. 76-48 Mr. Leonard M. Robinson County Attorney Wabaunsee County Courthouse Alma, Kansas 66401 Re: Lands omitted from tax rolls. Collection, penalties and interest. K.S.A. 79-417, K.S.A. 1975 Supp. 79-1701 et seq., 79-2001. Synopsis: Wh…

A unified school district which conducts special educa- tion programs for preschool children may receive state funds therefor which are categorical funds for special education distributed under K.S.A. 1975 Supp. 72-965.

The procedure for adoption of a charter ordinance by Kansas cities is prescribed solely and exclusively by article 12, § 5(c) of the Kansas Constitution. A proposed charter ordinance may not be submitted to the electorate upon an initiatory petition filed pursuant to K.S.A. 12-3013.

January 29, 1976 ATTORNEY GENERAL OPINION NO. 76-35 Mr. Merle R. Bolton Commissioner of Education Kansas State Department of Education 120 East 10th Topeka, Kansas 66612 Re: Schools--Tuition, Fees and Charges Synopsis: The textbook rental law, K.S.A. 72-4141 et seq. does not auth…

A petition which calls for an election for the dissolu- tion of a watershed district organized pursuant to K.S.A. 24-1201 et seq., only conditionally if certain problems recited therein are not solved in "a satisfactory and acceptable manner," and which is not shown to be signed by the statutory proportion of landowners of the district by a verified enumeration thereof by one of such land- owners, is legally insufficient, for either of these reasons, to require an election for dissolution pursuant to K.S.A. 24-1228. *

Contractors holding contracts under the provisions of Title VI and Title VII of the Civil Rights Act of 1964, and Executive Order 11246 are exempt from the reporting re- quirements of the Kansas Act Against Discri- mination. * * *

The mandatory contract provisions required by the Kansas Acts Against Discrimination when the contracting agency is the state or any county or municipality or other political subdivision of the state, apply not only to construction, alter- ation or repair of public building contracts; but also to any contract for the acquisition of materials, equipment, supplies or services.

A policy adopted by a board of education of a unified school district which permits smoking of cigarettes on the premises of a junior high school by minor students is within the legal authority of the board, and does not aid and abet any person in the violation of Kansas law.

A city of the second class may by charter ordinance exempt itself from K.S.A. 14-201 and provide in lieu thereof substitute provisions authorizing the selection and appointment of city officers and employees by a two-thirds vote of the council.

K.S.A. 1975 Supp. 65-442(b) affords no basis whatever for an assured legal conclusion that members of grievance and peer review committees of either local or state pro- fessional associations of health-care providers are immune from liability for the performance of the duties of such committees.

K.S.A. 19-2820 authorizes the issuance of general obligations upon the passage of a resolution de- claring the intent of the board of county commis- sioners to acquire title to land for park and recreational purposes. It may be amended by charter ordinance to authorize a resolution declaring the intent of the board of county commissioners to devote land to park and recrea- tional purposes, title to which has previously been acquired.

In a city of the third class, it is permissible for a man to be appointed to the office of city clerk, and for his wife to be appointed city treasurer, so long as both are registered voters of the city. *

The City of Haysville may, under the provisions of K.S.A. 12-1736 and K.S.A. 12-1737, repair, remodel and make additions to city offices, public libra- ries, auditoriums, community or recreational buildings without first submitting the question to a vote of the electors.

Under Uhl v. Ness City, et al, decided by the federal district court, Kansas cities continue to have power to adopt and enforce mandatory solid waste collection programs, and to assess mandatory charges for services rendered in such programs.