Kansas Attorney General Opinion 1992-103

ROBERT T. STEPHAN
ATTORNEY GENERAL July 31, 1992
ATTORNEY GENERAL OPINION NO. 92- 103
Greg A. Bengston
Salina City Attorney
129 South 8th
P.O. Box 380
Salina, Kansas 67401-0380
Re: Cities and Municipalities--General Provisions--
Initiative Election on Levying Tax or Other Revenue
Measure
Synopsis: A specific ad valorem tax levy may be proposed by
electors under K.S.A. 12-138a if the authority for
the tax is home rule power. If the specific levy
is properly proposed under K.S.A. 12-138a, it must
be put to a referendum, and if approved, the city
must adopt it. A specific ad valorem tax may be
proposed by electors under K.S.A. 12-3013 if the
authority for the tax is statutory. A proposed
levy is not necessarily inherently administrative
in character and initiative is not precluded. Any
levy adopted pursuant to initiative must be
considered in determining the city's aggregate tax
levy limit. Cited herein: K.S.A. 12-137; 12-138a;
12-138c; 12-3013; K.S.A. 1991 Supp. 25-301, as
amended by L. 1992, ch. 194, § 2; 25-3602, as
amended by L. 1992, ch. 194, § 3; K.S.A. 79-1948;
K.S.A. 1991 Supp. 79-5022; 79-5022; 79-5036; Kan.
Const., art. 12, sec. 5.

Dear Mr. Bengston:
You ask our opinion on a number of questions concerning
property tax levies proposed by petition.
First you ask whether a city may be required to levy a
specific number of mills of ad valorem property tax dedicated
to a specific purpose as the result of a vote initiated by
petition pursuant to K.S.A. 12-138a or 12-3013.
Prior to the enactment of the home rule amendment to the
Kansas constitution, a city's authority to levy taxes depended
on legislation. Such statutes, which still play an important
role, typically authorize a particular mill levy for a
particular purpose. Additionally, cities are authorized to
establish general funds. See K.S.A. 79-1948 et seq.
When the Kansas constitution was amended to grant cities home
rule power, cities' authority to tax changed. Article 12,
section 5(b) of the constitution now provides in relevant part:
"(b) Cities are hereby empowered to
determine their local affairs and
government including the levying of taxes,
excises, fees, charges and other exactions
except when and as the levying of any tax,
excise, fee, charge or other exaction is
limited or prohibited by enactment of the
legislature applicable uniformly to all
cities of the same class: Provided,
That the legislature may establish not to
exceed four classes of cities for the
purpose of imposing all such limitations
or prohibitions. Cities shall exercise
such determination by ordinance passed by
the governing body with referendums only
in such cases as prescribed by the
legislature, subject only to enactments of
the legislature of statewide concern
applicable uniformly to all cities, to
other enactments of the legislature
applicable uniformly to all cities, to
enactments of the legislature applicable
uniformly to all cities of the same class
limiting or prohibiting the levying of any
tax, excise, fee, charge or other exaction
and to enactments of the legislature
prescribing limits of indebtedness. All

enactments relating to cities now in
effect or hereafter enacted and as later
amended and until repealed shall govern
cities except as cities shall exempt
themselves by charter ordinances as herein
provided for in subsection (c)."
This amendment, in effect, reversed the presumption: Cities
may now tax unless limited or prohibited by the legislature.
K.S.A. 12-137 et seq. is the procedure which cities must
use in exercising their home rule taxing authority. K.S.A.
12-137 begins:
"Where, under the power of cities granted
by paragraph (b) of section 5 of article
12 of the constitution of Kansas, the
governing body of any city by ordinance
proposes to levy for revenue proposes any
tax, excise, fee, charge . . . which is
not limited or prohibited or a procedure
for the levy of which is not otherwise
prescribed by enactment of the legislature
as provided by said paragraph (b). • • . "
This statute then goes on to require enactment of the levy by
a procedure very similar to enactment of a charter ordinance
under article 12, section 5(c)(2).
K.S.A. 12-138a, which you inquire about, provides an
initiative procedure by which "the question of levying any tax
or other revenue measure, authorized by the provisions of this
act or other enactment referring to this act," may be proposed
by electors. By referring to "this act" the legislature has
limited application of K.S.A. 12-138a to initiating a tax
imposed under home rule authority, rather than a tax
authorized by legislation, unless the general statute refers
to K.S.A. 12-137 et seq.
You ask whether, under K.S.A. 12-137, a specific levy may be
imposed. Specific levies are both constitutional and common
-- many statutes provide for them and in fact article 11,
section 5 of the Kansas constitution provides: "No tax shall
be levied except in pursuance of a law, which shall distantly
state the object of the same; to which object such tax shall
be applied."

Is it mandatory for the city to enact such a tax if properly
proposed? K.S.A. 12-138a provides, in part: "If a majority
of the electors voting thereon at such election shall approve
the proposed tax or other revenue measures, the governing body
of such city shall then provide by ordinance for the levy of
such tax or revenue measure." (Emphasis added). The language
of the statute makes it mandatory for the city to impose the
tax assuming the tax is properly proposed and otherwise legal.
You next ask whether a tax levy may be initiated under K.S.A.
12-3013. K.S.A. 12-3013 sets forth a general procedure for
petitions proposing ordinances and referendums based on the
petitions. Subsection (e) provides:
"(e) The provisions of this section shall
not apply to:
"(1) Administrative ordinances;
"(2) ordinances relating to a public
improvement to be paid wholly or in part
by the levy of special assessments; or
"(3) ordinances subject to referendum or
election under another statute."
Because levies enacted under home rule authority are subject
to a separate procedure in K.S.A. 12-137 et seq., only
levies authorized by statute may be proposed under K.S.A.
12-3013.
You suggest that a levy may not be initiated under this
section as a levy would amount to an "administrative
ordinance." In City of Lawrence v. McArdle, 214 Kan. 862
(1974) the Court set forth guidelines for determining whether
a proposed ordinance is legislative and proper for initiative
and referendum, and when the ordinance is administrative and
not proper for initiative. The court said:
"One crucial test for determining that an
ordinance is administrative or legislative
is whether the ordinance is one making a
new law or one executing a law already in
existence. Permanency and generality of
application are two additional key
features of a legislative ordinance.

"Acts constituting a declaration of public
purpose and making provisions for ways and
means of its accomplishment may be
generally classified as calling for the
exercise of legislative power. Acts
dealing with only a small segment of an
overall policy question are generally of
an administrative character.
"Decisions which require specialized
training and experience in municipal
government and intimate knowledge of the
fiscal and other affairs of a city in
order to make a rational choice may
properly be characterized as
administrative, even though they may also
be said to involve the establishment of
policy." 214 Kan. at Syl. f 2, 3 and 4.
The determination of whether a proposed ordinance is
administrative or legislative is made on a case by case
basis. Rauh v. City of Hutchison, 223 Kan. 514, Syl.
I 3 (1978). We do not view a proposal for an ordinance
creating a levy as necessarily administrative in character.
Whether a proposed levy is administrative or legislative would
depend on the individual facts and circumstances.
You next ask the impact of K.S.A. 12-138c on any ordinance
proposed. K.S.A. 12-138c provides:
"All ad valorem tax levies, levied by
cities under the authority of article 12,
section 5 of the constitution of the state
of Kansas, are hereby limited or
prohibited as authorized by said article
12, section 5, in the manner herein
provided. Cities are hereby prohibited
from levying any such taxes, the ordinance
authorizing the levy of which does not
specifically authorize the use of a
portion of the proceeds of the levy to pay
the principal of and interest on special
obligation bonds issued by such city under
the provisions of K.S.A. 12-1774, and
amendments thereto, to finance, in whole
or in part, such redevelopment project."

You are concerned with the portion referring to using proceeds
to pay for bonds. The purpose of this language is discussed
in great detail in State ex rel Schneider v. City of
Topeka, 227 Kan. 115 (1980), and need not be repeated here,
except to say it makes tax increment financing possible.
K.S.A. 12-138c clearly indicates what language must be
included in the ordinance.
K.S.A. 1991 Supp. 25-3601, as amended by L. 1992, ch. 194, §
2, sets forth the requirements for all petitions. This
section's requirements control unless a specific provision in
another statute is in conflict. K.S.A. 1991 Supp. 25-3602(b),
as amended by L. 1992, ch. 194, § 3 provides, in part
"Each petition shall, unless otherwise
specifically required: (1) clearly state
the question which petitioners seek to
bring to an election. . . ."
We have consistently interpreted the requirements of K.S.A.
1991 Supp. 25-3602 quite strictly. See, e.g. Attorney
General Opinions No. 85-160 and 86-19.
Because K.S.A. 12-138c indicates language that must be
included in an ordinance, a petition filed under K.S.A. 1991
Supp. 12-138a, to properly state the question, would need to
contain all provisions to be included in the ordinance,
including the language of K.S.A. 12-138a. From this, it
follows that when the question is then put to a referendum,
the operative language must again be included.
You next ask if the tax levies enacted pursuant to K.S.A.
12-138a et seq. are included in a city's aggregate tax
levy limit under K.S.A. 1991 Supp. 79-5022. You state that
you recognize that a 12-138a home rule levy is not listed as
exempt under K.S.A. 1991 Supp. 79-5028.
We see no evidence of legislative intent for home rule levies
not to be included within the aggregate limit. We note that
in exercising home rule taxation, a city is still bound by the
legislature's limitations on indebtedness. As such, if such
home rule levy would cause the city to exceed the limit, the
city would have to suspend the levy limit, K.S.A. 79-5029,

charter out of it pursuant to K.S.A. 1991 Supp. 79-5036, or
reduce some other levy.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
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