Kansas Attorney General Opinion 1992-133

ROBERT T. STEPHAN
ATTORNEY GENERAL
October 16, 1992
ATTORNEY GENERAL OPINION NO. 92- 133
The Honorable Gerald "Jerry" Karr
State Senator, Seventeenth District
R.R. #2, Box 101
Emporia, Kansas 66801
Re: Counties and County Officers--County Commissioners;
Powers and Duties--Change in Number of Commissioner
Districts; Time for Holding Election
Synopsis: When the legislature has named a day on which an
election is to be held, or places bounds within
which it must be held, a proclamation naming a day
other than that fixed by the statutes is void and
the election confers nothing. K.S.A. 19-204, as
amended by L. 1992, ch. 38, § 4 provides that an
election regarding a change in the number of county
commissioners is to be conducted on the day of the
general election, following not less than 60 days
the presentation of the petition. Because November
3, 1992, falls within that 60-day period, an
election regarding a change in the number of county
commissioners for Chase county may not be called
for November 3, 1992, but rather, must be called
for the date of the general election to be
conducted in November, 1994. Cited herein: K.S.A.
19-204, as amended by L. 1992, ch. 38, § 4;
25-2502; K.S.A. 1991 Supp. 25-3601, as amended by
L. 1992, ch. 194, § 2; 25-3602, as amended by L.
1992, ch. 194, § 3; 77-201; Kan. Const., art.
4, § 2.

Dear Senator Karr:
As senator for the seventeenth district, you request our
opinion regarding whether a question concerning expansion of
the board of county commissioners for Chase county may be
submitted to a vote of the electorate on November 3, 1992.
As authorized under K.S.A. 19-204, as amended by L. 1992,
ch. 38, § 4, electors of Chase county circulated a petition
requesting that a proposition concerning expansion of the
board of county commissioners be submitted to the electorate
of Chase county. The proposed petition was submitted as
required by K.S.A. 1991 Supp. 25-3601, as amended by L. 1992,
ch. 194, § 2, to the Chase county attorney for a written
opinion as to the legality of the form of the question
submitted. On September 10, 1992, the county attorney
determined that the form of the question was proper and
legally sufficient; however, he expressed no opinion as to the
validity and sufficiency of the proposed petition. The
petition was then circulated and the requisite number of
signatures collected in two days -- September 13 and 14,
1992. The petition was thereafter filed with the county
election officer pursuant to K.S.A. 1991 Supp. 25-3902, as
amended by L. 1992, ch. 194, § 3, and it was determined that
a sufficient member of valid signatures had been collected.
However, as the general election to be held November 3, 1992,
falls within 60 days of the presentation of the petition, an
election regarding expansion of the board of county
commissioners has not been called for November 3, 1992.
"When under the laws of this state a petition is required or
authorized as a part of the procedure applicable to . . . any
county, . . . the provisions of [K.S.A. 25-3601 et seq.]shallapply,	except as is otherwise specifically provided in
the statute providing for such petition." K.S.A. 1991 Supp.
25-3601, as amended (emphasis added). K.S.A. 19-204, as
amended, provides for a petition regarding a change in the
number of commissioners for a board of county commissioners.
Among the provisions of that statute is the following:
"Upon the presentation of a petition to
the board of county commissioners, signed
by electors equal in number to 5% of the
qualified electors of the county and
verified by the county election officer,
requesting that the number of commissioner
districts be changed, the board of county
commissioners shall cause such proposition

to be submitted to the voters of the
county at the next general election,
following not less than 60 days the
presentation of such petition, in which
all of the qualified electors of the
county are entitled to vote." K.S.A.
19-204, as amended (emphasis added).
It is well established that time and place are of the
substance of an election. Gossard v. Vaught, 10 Kan.
162, 167 (1872); Wycoff v. Board of County Commissioners,
191 Kan. 658, 665 (1963); 26 Am.Jur.2d Elections § 226
(1966). When the legislature has named a day on which an
election is to be held, or placed bounds within which it must
be held, a proclamation naming a day other than that fixed by
the statutes is void and the election confers nothing.
Gossard, 10 Kan. at 167. K.S.A. 19-204, as amended,
provides that an election regarding a change in the number of
county commissioners is to be conducted on the day of the
general election, following not less than 60 days the
presentation of the petition. A proclamation calling for such
an election to be conducted prior to expiration of the 60-day
period would be void and the election of no effect. Because
November 3, 1992, falls within that 60-day period, an election
regarding a change in the number of county commissioners for
Chase county may not be called for November 3, 1992, but
rather, must be called for the date of the general election to
be conducted in November, 1994.
Very truly yours,
ROBERT T. STEPHAN
Attorney General
Richard D. Smith
Assistant Attorney General
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