Kansas AG Opinions — 1977

The levy authorized by K.S.A. 80-1903 may be used only for the operation and maintenance of a fire department which is created and operated by the township board which levies the tax, and may not be used for the pur- chase of fire protection services from other townships or township fire districts. *

April 27, 1977 ATTORNEY GENERAL OPINION NO. 77-1A Honorable Vern Miller District Attorney Sedgwick County Courthouse Wichita, Kansas 67203 RE: Criminal Code - Sentencing - Probation and sentencing for certain crimes involving use of firearms SYNOPSIS: K.S.A. 1976 Supp. 21-4618 re…

Under statutes amended by 1977 Senate Bill 154, the Sedgwick County Mental Retardation Governing Board is an eligible recipient of state financial assistance under the Kansas Community Mental Health and/or Com- munity Facility for the Mentally Retarded Assistance Act, K.S.A. 1976 Supp. 65-4401 et seq. as amended. Senate Bill 154 does not apply retroactively, however, and the first quarterly payment of funds to that Board under the 1977 legislation may not be made until July 1, 1977.

If, after the city has adopted subdivision regulations applicable to the area within the three-mile radius around said city, the county determines to adopt sub- division regulations applicable to that area, city regulations continue in force until the county certifies to the city its resolution designating that area for the adoption of subdivision regulations, and until, thereafter, regulations are adopted by the joint com- mittee for subdivision regulation appointed pursuant to K.S.A 12-705a, or a period of not exceeding six months has passed from the date of certification.

Counties may not exercise statutory home rule powers under K.S.A. 19-101a et seq. by resolution adopted jointly with one or more other counties. A county may not by resolution adopted pursuant to K.S.A. 19-101a(b) alter its statutory obligation to support a regional library fixed by K.S.A. 12-1234.

An infirmary of a religious order which falls within the definition of an adult care home must apply for a license from the Kansas State Department of Health and Environment.

April 19, 1977 ATTORNEY GENERAL OPINION NO. 77-130 Mr. Ray A. Neale City Attorney Municipal Building Coffeyville, Kansas 67337 Re: Cities--Officers--Disqualification Synopsis: Under K.S.A. 13-2903, a spouse of a city commissioner may serve as a dispatcher for the city police depa…

Under charter ordinance no. 16 of the City of Overland Park, a person appointed to fill a vacancy on the city council of that city serves until the next regular city election. Any person so appointed may stand for elec- tion at that time to complete the unexpired term, or may stand for election to serve a full term of four years in the other council position from that same ward. The precinct committee members within the ward have no authority to assign a candidate to seek the nomina- tion or election to any position which is to be filled at the regular city election.

Absent express statutory authority, a board of education has no authority to agree with a city to make voluntary payments to the city to defray the costs of a sewage treatment and disposal' facility constructed by the city with the proceeds of a bond issue approved under K.S.A. 12-630.

K.S.A. 1976 Supp. 82a-810a(a) prohibits operation of motor boat on any waters in this state with a motor or other propulsion machinery having a maximum horse- power capability beyond the maximum horsepower of the motor such vessel was designed or intended to accom- modate as reflected by the vessel's "capacity plate." Violations of said act are prosecutable under K.S.A. 1976 Supp. 82a-819(a). * *

K.S.A. 1976 Supp. 26a-121 provides that it is unlawful for a person not licensed under the Act to practice or offer to practice professional engineering in Kansas. Design of chemical process systems, if performed within this state by one not licensed by this state, violates the statute, regardless of the location of the plant facilities ultimately constructed. *

Any citizen, whether a resident of this state or of another state, is entitled to access to documents which are public records under K.S.A. 45-201. *

Contracts for construction of quarters for the Court of Appeals and for temporary quarters for my offices, both to be located in the Supreme Court building under construction, may not be negotiated with the present contractor or contractors employed on the project, but must be let by competitive bids.

March 21, 1977 ATTORNEY GENERAL OPINION NO. 77-1 24 Delma Walcher Register of Deeds Sumner County Courthouse Wellington, Kansas 67152 RE: Taxation - Mortgage Registration Fees - Assignment of Purchase Contract Rights SYNOPSIS: X sells his land to Y under an executory long term pu…

Section 4 of 1977 House Bill 2490 does not confer upon injured persons any right of action against the respon- sible tortfeasor which is in conflict with existing provisions of the Kansas Automobile Injury Reparations Act, K.S.A. 1976 Supp. 40-3101 et seq. *

It is within the constitutional power of the legislature to enact curative legislation, subsequent to the approval of a bond issue for county hospital purposes which is in excess of the statutory authority therefor, to enlarge such authority retroactively and validate bonds previously approved by the voters. The enactment of 1977 Senate Bill No. 459 will not deprive the plaintiffs in Thomas County Taxpayers Association v. Finney, Shawnee County District Court, no. 77-CV-0009, of the opportunity to pursue other issues which have been asserted in that litigation, or in any way deprive plaintiffs

The education requirements of K.S.A. 1976 Supp. 40-240a are not on their face arbitrary, capricious or unreason- able, so as to constitute an unconstitutional classifi- cation of agents to which such requirements apply. * *

K.S.A. 21-3515 does not require an actual exchange of consideration between the parties as an element of the offense of patronizing a prostitute. Under K.S.A. 21-3515, a prostitute includes any person who agrees to perform an act of sexual intercourse or any unlawful sexual act for hire, and any person who sol- icits and obtains such agreement from another, in- cluding a police officer acting in an official under- cover capacity, is liable to prosecution for patron- izing a prostitute. Under the Kansas Criminal Code, oral copulation between consenting adults of the opposite sex is not an unlaw

District judges, associate district judges and district magistrate judges may be assigned to hear and try any case within such assigned judge's jurisdiction by the appropriate departmental justice. The administrative judge may make such assignments when and as authorized to do so by the departmental justice.

The Uniform Extradition Act is applicable to a seventeen (17) year-old arrested in Kansas on a warrant from another state based on the commission of a crime in the demanding state where seventeen (17) year-olds are considered adults.

A delay of 72 hours in the transmittal to the governor and secretary of state of the certificate of election by a district convention of a person to fill a vacancy in a public office within 4 days after said convention, rather than within 24 hours, as required by K.S.A. 1976 Supp. 25-3902(f) constitutes substantial compliance with that requirement, and does not void the election conducted at said convention, or require the calling of a new convention. *

Proceeds received by the city from the special city and county highway fund pursuant to K.S.A. 1976 Supp. 79-3425(c) may not be applied to the cost of electric current for the operation of street lighting systems, for such costs are not costs of street maintenance itself. *

Under K.S.A. 25-1709, a parent corporation which owns a subsidiary which falls within the class of corpora- tions prohibited from making contributions, but which itself does not carry on any of the businesses or exer- cise any of the privileges recited therein, is not prohibited from making political contributions by virtue of its stock ownership in such covered corporations. Similarly, a corporation which does not carry on any of such named businesses, or exercise any of the speci- fied privileges, is not prohibited from making contri- butions merely by ownership of its stock by a corpora- ti

County general revenue sharing monies and general fund monies may be expended by the Neosho County board of county commissioners for the reconstruction, rebuilding or restoration of the Old Austin Bridge for pedestrian and other limited traffic, notwithstanding the bridge is closed to motor vehicle traffic. The board is under no statutory obligation to vacate county roads leading to the bridge merely because it is not used for vehic- ular traffic, so long as the road is deemed useful and convenient for public travel.

Monies from a county road and bridge fund are devoted by law to the construction, reconstruction, improvement, repair and maintenance of roads and bridges, and ac- quisition of rights-of-way, and may not be applied to the construction, operation or maintenance of a county solid waste disposal area.

The board of county commissioners is authorized to deter- mine the number of persons to be employed in the offices of other county elected offices, to fix their compensa- tion, to prescribe the operating hours for such offices and their personnel, and to prescribe other conditions of employment, such as sick leave policies and rules concerning absenteeism. * *

The compensation prescribed by city ordinance to be paid to the city attorney, which includes both a monthly retainer and an hourly rate of compensation, is subject to withholding for Social Security benefits under K.S.A. 1976 Supp. 40-2302 et seq.

The county attorney may not receive any compensation from the county for prosecuting tax foreclosure actions in addition to that provided for by county resolution as the salary for said office. *

The Board of Accountancy may not extend the period re- quired for the submission of additional education or experience except for those specifically excepted under K.A.R. 74-3-3. *

Under K.S.A. 8-237, the holder of a restricted license may operate a motor vehicle at any time while going to or from or in connection with any job or employment, whether or not the driver receives compensation for such job or employment. * *

It is within the statutory home rule powers of a board of county commissioners to adopt and enforce a resolu- tion prohibiting county officers from employing persons in their respective offices who are related to such office holders by specified degrees of relationship. *

If the city manager plan authorized by K.S.A. 12-1001 through -1020 is abandoned, such abandonment is effec- tive upon the date of approval thereof by the voters, pursuant to K.S.A. 1976 Supp. 12-1019. Abandonment of the city manager form of government by a city op- erating under a council form of government is effective sixty days after approval thereof by the voters. *

March 29, 1977 ATTORNEY GENERAL OPINION NO. 77- 107 Mr. George E. Grist, P.A. City Attorney Suite 408-Bitting Building 107 North Market Wichita, Kansas 67202 Re: Cities and Municipalities--Commencement of Prosecution and Arrest--Complainant Synopsis: Any citizen alleging the comm…

The holder of cereal malt beverage license, which does not also possess a private club license issued by the director of alcoholic beverage control, is precluded from operating the business as a private club since the Cereal Malt Beverage Act requires that such place be accessible to the general public.

The legislature is without authority to reduce the territory liable for payment of the principal and in- terest requirements of general obligation bonds of such territory once such bonds have been issued and sold.

K.S.A. 12-4301 does not authorize a municipal court to accept a motor vehicle operator's license issued by any state other than Kansas to secure the appearance of an accused person before such court.

March 21, 1977 ATTORNEY GENERAL OPINION NO. 77-103 Mr. Laurel D. McClellan Wilson County Attorney 430 North Seventh Street Fredonia, Kansas 66736 RE: Taxation - Mortgage Registration Tax - Exemption SYNOPSIS: The mortgage registration fee is a tax upon the debt or obligation secu…

`ATTORNEY GENERAL OPINION NO. 7-102 Honorable Ross 0. Doyen President, Kansas State Senate State Capitol Building Topeka, Kansas 66612 RE: Criminal Law - Uniform Controlled Substances Act - Marihuana SYNOPSIS: 1977 House Bill 2313 contains no classification which on its face is m…

A leasehold interest constitutes real estate within the meaning of K.S.A. 17-550 (1976 Supp.). However, where improvements on the leased land remain personalty, a security interest therein must be perfected by a security agreement and financing statement, rather than by the real estate mortgage which embodies the security interest in the leasehold estate.

The holder of a retail liquor license, who obtained the license for a particular premises prior to the estab- lishment of a school, college or church within two- hundred (200) feet of the business, may remodel the building in which the business is located or destroy the old building and construct a new structure without losing its status as a premises eligible for retail licensing.

A district magistrate judge who is appointed to office or retained in office by a vote of the electors, but who is not elected thereto by a partisan election, is not an elected official who may elect whether to become a member of the Kansas public employees' retirement system. A judge who is elected to office, and there- after subject to retention, is an elected official only during the term to which he or she was elected, and not during any subsequent term for which such judge was not elected, but retained.

The term bona fide resident as used in K.S.A. 32- 104a denotes any person who by his or her deliberate good faith acts and intentions has established an abode in Kansas to which whenever such person is absent he or she intends to return.