Kansas Attorney General Opinion 1992-036

ROBERT T. STEPHAN
ATTORNEY GENERAL
March 10, 1992
ATTORNEY GENERAL OPINION NO. 92-36
Robert L. Earnest
Russell City Attorney
P.O. Box 72
410 North Main Street
Russell, Kansas 67665
Re: Cities and Municipalities--Emergency Telephone
Services--Emergency Telephone Tax; Imposition by
Cities or Counties
Synopsis: Both counties and cities are authorized to
implement emergency telephone services within their
respective jurisdictions pursuant to K.S.A.
12-5302(a). However, K.S.A. 12-5301 et seq.
does not restrict a county's authority to
unincorporated areas of the county. The only
limitation is that a county may impose a tax for
emergency telephone services only in those portions
of the county to receive such service. Also, a
city or county is required to enter into a contract
with a service utility or company before imposing
the tax pursuant to K.S.A. 12-5302(a). Cited
herein: K.S.A. 12-5301; 12-5302; K.S.A. 1991
Supp. 19-101a.
*
Dear Mr. Earnest:
As city attorney for the city of Russell you request our
opinion regarding K.S.A. 12-5302. Specifically, you ask
whether K.S.A. 12-5302(a) allows the county to implement an
emergency telephone service throughout the entire county, or

whether the county is limited by the terms of the statute to
that portion of the county in which incorporated
municipalities do not exist. You also ask whether the statute
requires a city or county to enter into a contract with the
service company or utility having the telephone service in
that area before the city or county may impose the tax
provided for in this statute.
Pursuant to K.S.A. 12-5302(a), a governing body is authorized
to implement an emergency telephone service.
"In addition to other powers for the
protection of the public health and
welfare, a governing body may provide for
the operation of an emergency telephone
service and may pay for it by imposing an
emergency telephone tax for such service
in those portions of the governing body's
jurisdiction for which emergency telephone
service has been contracted. The
governing body may do such other 'acts as
are expedient for the protection and
preservation of the public health and
welfare and are necessary for the
operation of the emergency telephone
system. The governing body is hereby
authorized by ordinance in the case of
cities and by resolution in the case of
counties to impose such tax in those
portions of the governing body's
jurisdiction for which emergency telephone
service has been contracted. The amount
of such tax shall not exceed $.75 per
month per exchange access line or its
equivalent." (Emphasis added).
"Governing body" is defined in K.S.A. 12-5301(f) as "the board
of county commissioners of a county or the city commission,
city council or other governing body of a city." The
legislative history indicates that the legislature intended to
give local governing bodies the authority to implement
emergency telephone services. Minutes, Senate Committee on
Transportation, February 15, 1980. Subsection (b) of K.S.A.
12-5302 provides different procedures for implementing the
service depending on whether the jurisdiction to be served is
a city or a county. In our opinion, the clear intent of this
statute was to authorize both counties and cities to install

and operate emergency telephone services, and impose a tax
therefore, within their respective jurisdictions.
There is no language in the act, however, which would limit a
county's authority to operate such a service to unincorporated
areas of the county. Compare K.S.A. 12-754. If a city has
already implemented an emergency telephone service pursuant to
K.S.A. 12-5301 et seq. or the city's home rule authority,
the county may be precluded from interfering. See K.S.A.
1991 Supp. 19-101a(5). Otherwise, the only restriction
cited in K.S.A. 12-5302 limits the imposition of the tax for
emergency telephone service to those portions of the county
for which the service has been contracted.
You also ask whether a city or county is required to enter
into a contract before imposing a tax under K.S.A.
12-5302(a). This statute specifically states that a governing
body may impose an emergency telephone tax in its jurisdiction
"for which emergency telephone service has been contracted"
(emphasis added). Further, subsection (b) provides:
"The proceeds of the tax shall be utilized
to pay for the operation of emergency
telephone operation asset forth in
subsection (b) of K.S.A. 12-5304, and
amendments thereto, and may be imposed at
any time subsequent to execution of a
contract with the provider of such
service at the discretion of the
governing body." (Emphasis added).
Under a plain meaning analysis of this statutory language, the
governing body is required to enter into a contract with an
emergency telephone service before a tax can be implemented.
In conclusion, K.S.A. 12-5302(a) authorizes both cities and
counties to implement an emergency telephone service within
their respective jurisdictions. However, K.S.A. 12-5301 et
seq. does not restrict a county's authority to
unincorporated areas of the county. The only limitation is
that a county may impose a tax for emergency telephone
services only in those portions of the county to receive such

service. Also, a city or a county is required to enter into a
contract with a service utility or company before imposing the
tax.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
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