Kansas Attorney General Opinion 1992-018

ROBERT T. STEPHAN
ATTORNEY GENERAL February 7, 1992
ATTORNEY GENERAL OPINION NO. 92- 18
The Honorable Anthony Hensley
State Representative, 58th District
2226 SE Virginia
Topeka, Kansas 66605
Re: Constitution of the State of Kansas -- Public
Institutions and Welfare -- Aged and Infirm
Persons; Financial Aid; State and County
Participation
Synopsis: Article 7, section 4 of the Kansas constitution,
standing alone, does not impose a mandatory duty on
the counties or the state to provide assistance to
Kansans who because of age, infirmity, or other
misfortune cannot meet their own needs. It does,
however, require the legislature to enact statutes
which enable the counties to provide assistance.
Once the legislature has enacted these statutes,
the county has a duty to provide the prescribed
assistance. Cited herein: Kan. Const., Art.
7, § 4. *
Dear Representative Hensley:
As representative of the 58th district you request our
opinion as to whether article 7, section 4 of the Kansas
constitution imposes a duty, either on the state or the
counties, to provide assistance to those Kansas citizens who
because of age, infirmity, or other misfortune cannot meet
their own needs.

V
Article 7, section 4 reads as follows:
"The respective counties of the state
shall provide, [as may be prescribed by
law,' for those inhabitants who, by
reason of age, infirmity or other
misfortune, may have claims upon the aid
of society. The state may participate
financially in such aid and supervise and
control the administration thereof."
(Emphasis added).
The original purpose of this act was to provide assistance to
those who were deemed to be destitute. State v. Township of
Osawkee, 14 Kan. 322 (1875). Later this section was
examined and the Kansas court held that "the constitution of
this state gives utterance to the universal voice of
sympathy. . . . It gives voice to a universally recognized
state duty, to be discharged in the interest of the public
welfare. Care of the pauper is simply a part of the social
burden." Treadwell v. Beebe, 107 Kan. 31 (1920);
Beck v. Shawnee County, 105 Kan. 325 (1919). The court
also stated that "the care of those requiring aid and
dispensing of funds for their benefit is a part of the
county's ordinary business. . . ." Rishel v. McPherson
County, 122 Kan. 741 (1927).
However, the provision of the constitution, standing by itself
does not mandate a duty on the counties to provide relief to
the aged or infirm. It "requires counties to furnish certain
relief to the poor, as provided by law, and thereby imposes
a duty upon the legislature to enact statutes enabling the
county to perform that duty." State ex rel. v. Robb, 143
Kan. 527 (1936). Therefore, the legislature has a duty to
enact statutes that enable and authorize the county to provide
assistance to certain individuals. Once the legislature has
enacted such statutes then it is the duty of the county to
provide the prescribed assistance.
The constitution states that the state "may participate
financially in such aid and supervise and control the
administration thereof." (Emphasis added).
"Primarily and as ordinarily used in a
statute, the word 'may' is permissive
rather than peremptory. It is sometimes
regarded as synonymous with 'must,' as,
for instance, 'where public authorities

are authorized to perform an act for the
benefit of the public or for an individual
who has a right to its performance.'
(Phelps v. Lodge, 60 Kan. 122,
124.) It should be given its ordinary
meaning, however, unless the terms and
provisions of the statute compel the other
view. As was said in In re McCort,
Petitioner, 52 Kan. 18, 'the sense in
which the word is used must always be
determined from the context of the act.'"
Bradley v. Cleaver, 150 Kan. 699
(1939).
Based on the language in this section of the Kansas
constitution, we determine that the word "may" is not
mandatory, but is permissive and therefore, the state is not
under a constitutional duty to provide assistance to people
who because of their age, infirmity or other misfortune cannot
otherwise meet their needs.
In conclusion, although article 7, section 4 of the Kansas
constitution does not on its own impose a duty on the counties
or the state to provide assistance to people who cannot meet
their own needs, there is a duty on the legislature to enact
statutes which enable to provide assistance. Then once the
legislature has enacted these statutes, the county has a duty
to provide the prescribed assistance.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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