Kansas Attorney General Opinion 2017-006

February 9, 2017
ATTORNEY GENERAL OPINION NO. 2017- 6
Laura E. Johnson-McNish
Marshall County Counselor
Marshall County Courthouse
1201 Broadway
Marysville, KS 66508
Re: 	Cities 	and 	Municipalities—General 	Provisions—Countywide 	and
City 	Retailers’ 	Sales 	Tax; 	Procedure 	for 	Imposition; 	Election
Required; Use of Revenue
Synopsis: 	The petitioning process afforded in K.S.A. 2016 Supp. 12-187(b)(1)
is not an option under K.S.A. 2016 Supp. 12-187(b)(5). 	Whether a
question authorizing a countywide retailers’ sales tax, the proceeds
of which would be pledged to support health care services, is
submitted to the electors is solely within the discretion of the board
of county commissioners. 	A private not-for-profit hospital may be
included as health care services under K.S.A. 2016 Supp. 12-
187(b)(5). 	Cited herein: 	K.S.A. 2016 Supp. 12-187; 12-189; 12-
192; K.S.A. 12-4906; 13-14b12; 14-640d; 19-2106; 19-4606; 65-
204; 65-212; 65-468.
* 	* 	*
Dear Ms. Johnson-McNish:
As Marshall County Counselor and on behalf of the Board of Marshall County
Commissioners, you request our opinion regarding whether petitioners may,
through the petition process, force a board of county commissioners to place on
the ballot a question authorizing a countywide retailers’ sales tax the proceeds of
which would be pledged to support health care services. 	You also ask whether
“health care services” under K.S.A. 2016 Supp. 12-187(b)(5) includes a private
not-for-profit hospital.

Laura E. Johnson-McNish
Page 2
You state that Community Memorial Hospital (CMH), located in Marysville,
Kansas, is a Kansas not-for-profit corporation in good standing and is exempt
from paying federal income taxes under § 501(c) of the Internal Revenue Code.
You also indicate that there is currently no city or county tax levy in place to
provide public funding of CMH. 	During the August 29, 2016, meeting of the
Board of Marshall County Commissioners, a motion was made to place on the
November 8, 2016, ballot a question seeking authorization to levy a 0.5%
retailers’ sales tax to provide support for CMH. 1 	The motion died for lack of a
second. 2 	Individuals have indicated they may circulate a petition that would
obligate the Board to submit to the electors a question seeking authorization to
levy a retailers’ sales tax to provide support for CMH.
The authority of a board of county commissioners to levy a retailers’ sales tax is
conferred by the Legislature through K.S.A. 2016 Supp. 12-187 et seq. 	The
relevant provisions for the issues presented are:
(b)(1) The board of county commissioners of any county may
submit the question of imposing a countywide retailers’ sales tax to
the electors at an election called and held thereon, and any such
board shall be required to submit the question upon submission of
a petition signed by electors of such county equal in number to not
less than 10% of the electors of such county who voted at the last
preceding general election for the office of secretary of state. . . .
. . . .
(5) The board of county commissioners of any county may submit
the question of imposing a retailers’ sales tax at the rate of 0.25%,
0.5%, 0.75% or 1% and pledging the revenue received therefrom
for the purpose of financing the provision of health care services, as
enumerated in the question, to the electors at an election called
and held thereon. . . . The tax imposed pursuant to this paragraph
shall be deemed to be in addition to the rate limitations prescribed
in K.S.A. 12-189, and amendments thereto. . . .3
. . . .
(g) The governing body of the city or county proposing to levy any
retailers’ sales tax shall specify the purpose or purposes for which
1 Marshall County Commission, Meeting Minutes, August 29, 2016.
2 Id.
3 K.S.A. 2016 Supp. 12-187(b) includes 31 provisions. The remaining provisions of K.S.A. 2016
Supp. 12-187(b) validate seven elections and confer authority upon designated counties to
submit questions seeking approval of retailers’ sales taxes for the purposes set out in the
individual provisions.

Laura E. Johnson-McNish
Page 3
the revenue would be used, and a statement generally describing
such purpose or purposes shall be included as a part of the ballot
proposition.4
The rate limitations are set forth in K.S.A. 2016 Supp. 12-189:
The rate of any countywide retailers’ sales tax shall be fixed in an
amount not to exceed 1% and shall be fixed in increments of
0.25%, and which amount shall be determined by the board of
county commissioners, except that:
. . . .
(d) 	the 	board 	of 	county 	commissioners 	of 	any 	county 	for 	the
purposes of K.S.A. 12-187(b)(5), and amendments thereto, may fix
such rate at a percentage which is equal to the sum of the rate
allowed to be imposed by a board of county commissioners on the
effective date of this act plus 0.25%, 0.5%, 0.75% or 1%, as the
case requires. . . .
The manner of apportioning the sales tax revenues is established in K.S.A. 2016
Supp. 12-192:
(a) Except as otherwise provided by subsection (b), (d) or (h), all
revenue received by the director of taxation from a countywide
retailers’ sales tax shall be apportioned among the county and each
city located in such county in the following manner: (1) One-half of
all revenue received by the director of taxation shall be apportioned
among the county and each city located in such county in the
proportion that the total tangible property tax levies made in such
county 	in 	the 	preceding 	year 	for 	all 	funds 	of 	each 	such
governmental unit bear to the total of all such levies made in the
preceding year; and (2) one-half of all revenue received by the
director of taxation from such countywide retailers’ sales tax shall
be apportioned among the county and each city located in such
county, first to the county that portion of the revenue equal to the
proportion 	that 	the 	population 	of 	the 	county 	residing 	in 	the
unincorporated area of the county bears to the total population of
the county, and second to the cities in the proportion that the
population of each city bears to the total population of the county. . .
. 	All revenue apportioned to a county shall be paid to its county
treasurer and shall be credited to the general fund of the county.
. . . .
4 K.S.A. 2016 Supp. 12-187.

Laura E. Johnson-McNish
Page 4
[(d)](2) Except as otherwise provided in K.S.A. 12-187(b)(5), and
amendments thereto, all revenues received from a countywide
retailers’ sales tax imposed pursuant to K.S.A. 12-187(b)(5), and
amendments thereto, shall be remitted to and shall be retained by
the 	county 	and 	expended 	only 	for 	the 	purpose 	for 	which 	the
revenue received from the tax was pledged.
Procedure
In 	order 	to 	determine 	whether 	petitioners 	may 	force 	a 	board 	of 	county
commissioners to submit to the electors a question seeking authorization of a
countywide 	retailers’ 	sales 	tax 	to 	fund health care services, the preceding
statutory provisions must be construed.
[T]he fundamental rule to which all other rules are subordinate is
that the intent of the legislature governs if that intent can be
ascertained. When language is plain and unambiguous, there is no
need to resort to statutory construction. 	An appellate court merely
interprets the language as it appears; it is not free to speculate and
cannot read into the statute language not readily found there.
Statutory language is our paramount consideration because the
best and only safe rule for ascertaining the intention of the makers
of any written law is to abide by the language they have used. 	But
even when various statutory provisions are unambiguous, we may
still construe them in pari materia with a view of reconciling and
bringing the provisions into workable harmony. 5
After 	reviewing 	the 	statutory 	provisions, 	we 	note 	that 	the 	Legislature 	has
provided in K.S.A. 2016 Supp. 12-187(b)(1) a method for establishing a retailers’
sales tax generally, then, in K.S.A. 2016 Supp. 12-187(b)(5), established a
method for establishing a retailers’ sales tax for a specific purpose. 	The
Legislature continues the distinction by establishing different rate limits and
apportionment provisions if the retailers’ sales tax provides revenue for financing
health care services. 	It is clear that the retailers’ sales tax for financing the
provision of health care services as authorized in K.S.A. 2016 Supp. 12-187(b)(5)
is separate and distinct from a sales tax instituted pursuant to K.S.A. 2016 Supp.
12-187(b)(1). 	The 	provisions 	in 	K.S.A. 	2016 	Supp. 	12-187(b)(1) 	are 	not
applicable when seeking authorization from the electors for establishment of a
retailers’ sales tax for the purpose of financing health care services under K.S.A.
2016 Supp. 12-187(b)(5). The petitioning process afforded in K.S.A. 2016 Supp.
12-187(b)(1) is, therefore, not an option under K.S.A. 2016 Supp. 12-187(b)(5).
5 Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918-19 (2015) (internal quotation marks and
citations omitted). See also Ullery v. Othick, 304 Kan. 409 (2016).

Laura E. Johnson-McNish
Page 5
Whether such a question is submitted to the electors under K.S.A. 2016 Supp.
12-187(b)(5) is solely within the discretion of the board of county commissioners.
Health Care Services
K.S.A. 2016 Supp. 12-187(b)(5) provides some direction as to the types of
programs or services that may receive the proceeds derived from a retailers’
sales tax established for the purpose of financing health care services:
As used in [K.S.A. 2016 Supp. 12-187(b)(5)], health care services
shall include, but not be limited to, the following: Local health
departments, city or county hospitals, city or county nursing homes,
preventive health care services including immunizations, prenatal
care and the postponement of entry into nursing homes by home
care 	services, 	mental 	health 	services, 	indigent 	health 	care,
physician 	or 	health 	care 	worker 	recruitment, 	health 	education,
emergency medical services, rural 	health clinics, integration of
health 	care 	services, 	home 	health 	services 	and 	rural 	health
networks. 6
The 	provision 	includes 	a 	nonexclusive 	list 	of 	examples 	of 	institutions 	and
services that are deemed by the Legislature to be health care services. 7 	The
bulk of institutions and services expressly included in the list may receive some
form of local public funding under other statutes. 8 	However, it appears that at
least one type of listed institution and service is not supported through some form
of local taxation. 9 Because the list provided in K.S.A. 2016 Supp. 12-187(b)(5) is
nonexclusive and the Legislature has not indicated that only institutions and
services eligible for support through local taxation under other statutes are to be
6 Emphasis added.
7 See Board of County Comm’rs v. Smith, 18 Kan.App.2d 662, 669 (1993) (statute provides that
land devoted to agricultural use means land devoted to the production of plants, animals, or
horticultural products, then provides a nonexclusive list of examples of plants, animals, and
horticultural products). See also Attorney General Opinion Nos. 2004-24 (“‘[P]ersonal property’ is
not included in the statutory list of permissible costs. However, since the list is preceded by the
words ‘including but not limited to,’ the longstanding statutory construction maxim of expressio
unius est exclusio alterius (the mention of one thing implies the exclusion of other things not
mentioned) is not applicable.”); 92-40 (“K.S.A. 19–119 allows for expenditures that encompass
‘machinery, vehicles and any other equipment or personal property including but not limited to,
computer hardware and software.’ 	Since such language is very broad and research into the
legislative history of K.S.A. 19–119 does not show that the phrase was meant to cover only a
certain, few items, we interpret this statute to authorize expenditures for anything that fits within
the definition of equipment or personal property, if the item is something the county is authorized
to purchase for municipal purposes.”).
8 See K.S.A. 12-4906 (home for the aged; cities); 13-14b12 (hospital; city of the first class); 14-
640d (hospital; city of the second class); 19-2106 (home for the aged; counties); 19-4606
(hospital; county); 65-204 (local health department; county); 65-212 (mental health clinic; county).
9 See K.S.A. 65-468 et seq. (rural health network).

Laura E. Johnson-McNish
Page 6
included 	as 	health 	care 	services, 10 	a 	private 	not-for-profit 	hospital 	may 	be
included as health care services under K.S.A. 2016 Supp. 12-187(b)(5).
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb
10 “When statutory language is plain and unambiguous, the court does not speculate as to
legislative intent, and does not read into the statute words not readily found there.” 	Whaley v.
Sharp, 301 Kan. 192, 196 (2014).