Kansas Attorney General Opinion 1992-059

ROBERT T. STEPHAN
ATTO RN EY G EN ERAL May 5, 1992
ATTORNEY GENERAL OPINION NO. 92- 59
Harold T. Walker
City Attorney
City of Kansas City, Kansas
Ninth Floor, Municipal Office Building
701 North Seventh Street
Kansas City, Kansas 66101
Re: Personal and Real Property--Disposition of
Unclaimed Property Act--Unclaimed Property Held by
a Utility
Cities and Municipalities--Public Utilities; Any
City--Deposits to Secure Payment of Bills;
Abandoned Deposits, Disposition
Synopsis: A municipally owned utility which transfers
unclaimed security deposits to its operating fund
pursuant to K.S.A. 12-822 is not required to report
and deliver such deposits to the state treasurer
pursuant to the disposition of unclaimed property
act. Cited herein: K.S.A. 12-822, 58-3901; K.S.A.
1991 Supp. 58 - 3904; 58-3912; K.S.A. 58-3914; L.
1978, ch. 59, § 1; L. 1979, ch. 173; L. 1989,
ch. 48, § 65; L. 1989, ch. 170, §S 4, 9.
Dear Mr. Walker:
You request our opinion regarding a potential conflict between
the provisions of K.S.A. 12-822 and K.S.A. 58-3901 et
seq. Specifically, you question whether a municipally owned

owned utility which chooses to transfer unclaimed security
deposits to its operating fund pursuant to K.S.A. 12-822 must
still report and remit such unclaimed deposits to the state
treasurer pursuant to K.S.A. 1991 Supp. 58-3912 and K.S.A.
58-3914.
K.S.A. 12-822 authorizes public and municipally owned
utilities to receive security deposits from customers under
certain specified conditions, and contains the following
provision:
"Any amount of security deposit, and the
accrued interest thereon remaining in the
account of any customer of a municipally
owned utility who has discontinued service
with such utility shall be placed in the
operating fund of such utility, upon the
following conditions: (a) Such money
has remained on deposit with the municipal
utility for a period of more than three
years from the date service was
discontinued;
"(b) no demand for such money has been
made at any time during the three-year
period;
"(c) the whereabouts of the person to
whose account the money is credited is
unknown and a reasonable effort has been
made to determine the same; and
"(d) following the expiration of the
three-year period, the utility has
published, once each week for two
consecutive weeks in a newspaper of
general circulation in the county in which
the utility is located, a notice listing
any person whose deposit remains on
account, and that a demand for such money
must be made within 60 days. Any security
deposits remaining in the account of any
such customer 60 days after the last
publication of such notice shall be placed
in the operating fund of such utility."
(Emphasis added).

The quoted provision was enacted in 1978 and has not been
significantly amended since that time. L. 1978, ch. 59, S 1.
K.S.A. 1991 Supp. 58-3912 and K.S.A. 58-3914, respectfully,
require the holder of funds or other property that is presumed
abandoned under the disposition of unclaimed property act
(K.S.A. 58-3901 et seq.) to report the existence of and
deliver such property to the state treasurer to be held in
trust for the rightful owner. Pursuant to K.S.A. 1991 Supp.
58-3904:
"The following unclaimed property held or
owing by any utility shall be presumed
abandoned property:
"Any deposit made by a subscriber with a
utility to secure payment for, or any sum
paid in advance for, utility services to
be furnished in this state, less any
lawful deductions, that has remained
unclaimed by the person appearing on the
records of the utility entitled thereto
for more than five years after the
termination of the services for which the
deposit or advance payment was made."
"Utility" is defined at K.S.A. 58-3901(h) as "any person who
owns or operates within this state for public use, any plant,
equipment, property, franchise, or license for the
transmission of communications or the production, storage,
transmission, sale, delivery, or furnishing of electricity,
water, steam, or gas." "Person" is defined to include
government or political subdivisions and "any other legal or
commercial entity." K.S.A. 58-3901(g). Thus, security
deposits of a municipally owned utility that remain unclaimed
by the person appearing on the utility's records for more than
five years would be subject to the provisions of the
disposition of unclaimed property act.
The disposition of unclaimed property act was enacted in 1979,
one year subsequent to enactment of the pertinent provisions
of K.S.A. 12-822. L. 1979, ch. 173. K.S.A. 12-822, K.S.A.
1991 Supp. 58-3904 and 58-3912 have all been amended as
recently as 1989. See L. 1989, ch. 48, S 65; L. 1989,
ch. 170, SS 4, 9.
One rule of statutory construction provides that older
statutes must be read in the light of, and must be harmonized

later legislative enactments and must be subordinated thereto
if a conflict exists. State v. Keeley, 236 Kan. 555, 560
(1985). However, repeals by implication are not favored and a
former act will not be held to have been repealed by
implication unless the later enactment is so repugnant to
provisions of the first that both cannot be given force and
effect. Jenkins v. Newman Memorial County Hospital, 212
Kan. 92, 96 (1973). Further, it is the duty of the court to
reconcile different statutory provisions so as to make them
consistent, harmonious and sensible. In so doing, general and
special statutes should be read together and harmonized
whenever possible, but to the extent a conflict between them
exits, the more specific statute will prevail unless it
appears that the legislature intended to make the more general
statute controlling. Kansas Racing Management, Inc. v.
Kansas Racing Commission, 244 Kan. 343, 353 (1989). In
Keely, supra, the rule preferring later enactments was
subordinated to the rule preferring specific over general
enactments.
While the disposition of unclaimed property act was enacted
subsequent to K.S.A. 12-822, the pertinent provision of K.S.A.
12-822 is specific to municipally owned utilities; K.S.A. 1991
Supp. 58-3904 and the disposition of unclaimed property act
apply generally to all utilities and other holders of
unclaimed property. In order to harmonize the provisions,
giving force and effect to all but deference to the more
specific, we believe K.S.A. 12-822 must be read to give
municipally owned utilities an alternative to the requirements
of the disposition of unclaimed property act. Both contain
essentially the same notice requirements before disposition of
the security deposits: actual notice if possible; constructive
notice for two consecutive weeks in a newspaper of general
circulation if actual notice is not effective. Requiring the
same notice procedures twice is not sensible. We believe the
legislative intent was to allow municipally owned utilities to
retain and use security deposits which are not claimed within
the three years plus time allotted by K.S.A. 12-822. There is
no expression of legislative intent in the disposition of
unclaimed property act or its legislative history to make its
general provisions controlling over the more specific
provisions of K.S.A. 12-822.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
L. Miller
Deputy Attorney General
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