Kansas Attorney General Opinions

K.S.A. 12-172 et seq., and amendments thereto, are ineffective to oust Kansas cities from the power to authorize by local municipal legislation the levy of retailers' sales taxes. The Secretary of Revenue is empowered and authorized to provide for the enforce- ment and collection of such taxes.

The industrial revenue bond act permits the issuance of bonds to include an amount sufficient to create a debt service reserve fund.

All conveyances and other instruments affecting real estate must be signed by the grantor and acknowledged before an authorized public officer having a seal. A photocopy of an instrument purporting to convey an interest in real estate, but which does not have the original signature of the grantor, nor the original signature and seal of the officer acknowledging the instrument, cannot be recorded under the statutes.

When a joint city-county health department appoints a local health program administrator as health officer, pursuant to K.S.A. 1975 Supp. 65-201, who is not a physi- cian, such administrator may not give the examination and execute the certificate required by K.S.A. 1975 Supp. 23-301.

The number of signatures on a petition which is filed pursuant to K.S.A. 19-436 must be determined according to the number of qualified voters in the county, and that term includes only registered voters. *

Effective January 1, 1977, the owner of any truck or truck tractor which has been licensed pursuant to K.S.A. 1976 Supp. 8-143 will be required to put the name, ad- dress and gross weight on the side of the vehicle, pur- suant to K.S.A. 8-143e.

The board of education has an affirmative duty to act within a reasonable time after the occurrence of a vacancy to publish notice thereof, and to fill the position by appointment. *

The voter instructions appearing •on the official gener- al ballot, as prescribed by K.S.A. 25-616 to advise voters that they may vote not only for party nominations, but also for independent nominations, and the designation should appear to the left of 'the box for the voters' cross mark.

A mortgage, and the note it secures, is an intangible and should be taxed as such, except the mortgage regis- tration law provides that after the payment of the mortgage registration fee, the mortgage and note shall not otherwise be taxable. The amount of fee is based on the amount of debt which the mortgage secures. Where an openend mortgage provides for a larger debt but upon recording the registration fee is paid improperly on a lesser current advance, the fee is not paid in full, and demand for the full fee should be made. If payment is refused; the intangible tax law should be enforced ag

The Division of Health of the State Department of Health and Environment may refuse to allow public inspection of certain "Food Establishment Inspec- tion Forms" which are used as investigative devices by the Department.

The City of Olathe may include in its 1977 general fund budget monies derived from the general fund levy to be applied to bond and interest obligations of the city.

The health officer of a joint city-county health board must perform the premarital examinations required under K.S.A. 1975 Supp. 23-301, and issue the necessary certi- ficates, upon request of any applicant for a marriage license in said county. *

The county or district attorney must represent the otherwise unrepresented applicant in a mental illness proceeding under K.S.A. 1975 Supp. 59-2901 et seq., and in alcoholic treatment cases under K.S.A. 65-4001 et seq., whether the proceeding is filed initially in the jurisdiction of such county or district attorney, or is transferred there pursuant to a change of venue ordered by the transferor court.

A fire district may not be organized by a resolution of the board of county commissioners under K.S.A. 19-3601 et seq. in any year after July 1 thereof.

Persons who are duly registered to vote, and who regis- tered when enrolled as students at the Way College of Bible, remain entitled to receive absentee ballots, un- less and until registration is cancelled pursuant to law. Failure to enroll in the fall semester, and absence from the county, does not in and of itself conclusively establish a change of residence so as to warrant cancella- tion of registration. *

Interest which accrues on delinquent taxes from date taxes are due until payment thereof, or until sale of the property on foreclosure, is to be credited to the county general fund, including interest on taxes col- lected for cities and other taxing subdivisions.

August 26, 1976 ATTORNEY GENERAL OPINION NO. 76-272 Mr. Tom M. Reeves Marshall County Attorney 916 Broadway P.O. Box 386 Marysville, Kansas 66508 Attn: Mr. Terry Blaser Re: Counties - Buildings - Courthouses Synopsis: In the exercise of county home rule powers, the board of count…

Where as a result of the redrawing of ward boundaries of a city of the second class, members of the council reside in wards other than those from which they were originally elected, despite the fact that no such mem- bers have effected a change in the place of residence during such time, such members may continue to serve in office until the expiration of their terms. *

K.S.A. 8-264 provides that no person shall "authorize or knowingly permit" an unlicensed driver to operate a motor vehicle 'under the lender's ownership or con- trol. Knowledge that the bailee is unlicensed is not an element of the offense if the charge is based on unlawful authorization. * *

A second mortgage, taken by the guarantor of the payment of the first mortgage note, recorded on the same real estate for the same amount of indebtedness on the same date, is actually an additional security for the payment of the one indebtedness. The mortgage registration fee can be collected but once on a single indebtedness.

Rules and regulations of the Secretary of Health and Environment, adopted pursuant to K.S.A. 1975 Supp. 65-4320(a), apply to all ambulance vehicles, including those in service on July 1, 1975, except when compliance ,

Members of a city council, who were appointed by the council to fill vacancies therein pursuant to a city charter ordinance, which appointments were for the period until the next ensuing city election, continue to hold said offices, notwith- standing no persons were elected to the positions at the first city election following such appoint- ments, and hold their positions until their successors are elected and qualified.

The aggregated minimum sentence imposed upon one sentenced to consecutive terms for several offenses, only one of which involves a crime designated by House Bill No. 2846, does not become mandatory in its totality merely because one of the sentences contains a mandatory minimum component. RE: Crimes and Punishments - Sentencing - Length of man- - datory component of sentence where consecutive- sen- tences are imposed for separate offenses under House Bill No. 2846.

Staff and personnel employed by the State Advisory Council for Vocational Education are under the com- plete supervision and control of the Council. The State Board of Education is limited by K.S.A. 72-4409(d) only to approval of the creation and establishment of staff and personnel positions. The State Board of Education has no authority in the employment, supervision or control of personnel occupying such approved staff and positions.

The offering by an area vocational-technical school of an approved course or courses at a location separate and apart from the main campus facility does not con- stitute the establishment and operation of another area vocational-technical school in violation of the mora- torium imposed by K.S.A. 72-4412 on the establishment of any additional area vocational-technical schools.

A member of the city council of a city of the second class, operating under K.S.A. 14-201 or comparable charter ordinance, who as a member of the council votes only to approve or disapprove the mayoral ap- pointments of law enforcement officers, is not a "person who appoints . . . a law enforcement offi- cial," who is disqualified under K.S.A. 41-311(1)(i) from holding a license issued under chapter 41, K.S.A. *

The Department of Transportation must provide for an annual audit of the State Freeway Fund and the Sinking Fund notwithstanding the actions of other state agencies.

If the voters reject a levy in excess of one mill for the recreation commission at an election held pursuant to K.S.A. 12-1908(b), the limit on such levy reverts to one mill, notwithstanding levies in excess of one mill were made in prior years dur- ing which no sufficient petitions in opposition thereto were filed. *

A sales tax is not a property tax. It is an excise tax levied upon the privilege of engaging in the business of selling tangible personal property or services at retail. The 1970 narrowing of sales tax exemptions to non-profit public or private schools and hospitals, and removing sales tax exemptions on purchases for religious, charitable and benevolent exclusive uses, does not violate the United States or Kansas Constitutions.

The statutory requirement of mailing to all parties copies of all orders of the Board of Tax Appeals by use of registered or certified mail applies to tax protest hearing applications. Taxing districts are necessary and interested parties.

A city, buying tangible personal property or service, must pay the sales tax on items which are used or proposed to be used in a business specifically taxable under the sales tax act. Engaging in the sale of electricity is specifically taxable, even when furnished by a municipality. The purchase of a Peak Electrical Generator for use in the Norton electrical system is subject to Kansas sales tax.

Board of county commissioners may utilize supplementary contributions in addition to funds raised by tax levy to pay principal and intere s t requirements of bonds issued pursuant to K.S.A. 19-1878.

August 16, 1976 ATTORNEY GENERAL OPINION NO. 76- 254 Raymond A. Bloxsom Police Legal Advisor Department of Police 204 West Fifth Street Topeka, Kansas 66603 RE: Criminal Code - Sentencing - Expungement of certain convictions. SYNOPSIS: In any inquiry concerning the existence of r…

A member of the Wichita Real Estate Advisory Board is not disqualified from continued membership and service thereon because of the maintenance of civil litigation against the city by such person concerning private business interests of such member, unrelated to matters within the province of the Board.

Expenditures from the proceeds of a levy extended under K.S.A. 79-1607 to pay no-fund warrants issued under the authority of that provision must be sup- ported by duly adopted budgetary authority. *

In making a determination whether a juvenile is "dangerous to himself or to others," a finding that, if released, the juvenile may commit acts which entail a reasonably foreseeable likelihood of physical harm to the person of the juvenile or of another, would support detention under K.S.A. 1975 Supp. 38-815e(1). A juvenile may be placed in the custody of any institution or person enumerated in K.S.A. 38-826 pending final disposition with the qualification that no juvenile under sixteen (16 ) years of age .

The state may expend monies for the construction of a horse barn on the Kansas State Fair Grounds in Hutchinson.

August 12, 1976 ATTORNEY GENERAL OPINION NO. 76- 252 Ms. Ernestine Gilliland State Librarian Kansas State Library 535 Kansas Avenue Topeka, Kansas 66603 RE: Libraries - Grants-in-Aid - Rent SYNOPSIS: A local public library or a regional library may expend moneys received as grant…

The system board of a regional system of cooperating libraries, established under K.S.A. 75-2547 et seq., is authorized to acquire, by purchase, rental or lease, physical facilities to house the operations of such system. *

A community mental health center or a community facility for the mentally retarded, established pursuant to K.S.A. 19-4001 et seq., is not a health care provider as that term is defined by ch. 231, §1, L. 1976. *

August 11, 1976 ATTORNEY GENERAL OPINION NO. 76-249 Mr. Shelley Graybill Elkhart City Attorney Elkhart, Kansas 67950 RE: Cities - Additions - Abstract of Title SYNOPSIS: Under K.S.A. 12-401, the proprietor of a proposed addition to a city of the second class is required to furnis…

August 11, 1976 ATTORNEY GENERAL OPINION NO. 76-248 Mary F. Hope Commissioner of Elections Shawnee County Courthouse Topeka, Kansas 66603 RE: Elections - Registration - Application SYNOPSIS: Any person who seeks to register to vote must, under 1976 legislation, apply either in pe…

The election of an employee who is eligible under sub- section (1)(a) of K.S.A. 1975 Supp. 74-4925, as amended, to elect, prior to July 1, 1976, to participate in a retirement annuity plan described in that section in lieu of receiving participating service credit under the Kansas public employees retirement system, and who does so prior to July 1, 1976, is valid and binding thereafter, notwithstanding the employee terminates employment prior to August 18, 1976.

Any person who does not satisfy the durational residence qualifications of K.S.A. 19-801b(a) is not eligible for nomination or election to the office of sheriff. If nominated and elected, such person acquires no legal claim or title to the office, or to the compensation which attaches to said office.

The Kansas open meeting law contains no statutory restriction regarding the subjects which may be discussed in executive or closed sessions of the governing body.

Proceeds from the municipal band levy authorized by K.S.A. 12-14a01 et seq. may be used only to fund concerts and other musical services provided by the city band pursuant to contract with the city, and may not be used to fund musical presentations by other groups. The city band may contract with the city to furnish musical services to support other municipally-sponsored cultural activities at which charges are made to defray non-band related expenses thereof. * *

Where an amendment to articles of incorporation are filed which also includes a change of the resident agent and/or of the registered office of the corpor- ation, a single fee of $20.00 for filing and indexing such certificate of amendment should be charged.