Daniel H. Diepenbrock
Seward County Counselor
223 North Kansas, P.O. Box 2677
Liberal, Kansas 67005
Dear Mr. Diepenbrock:
You inquire whether a board of county commissioners may establish a county library pursuant to K.S.A. 12-1218 et seq. and, by ordinary resolution, impose a cap on the tax levy established by the library board. If the county cannot impose a cap in that manner, you inquire whether it can charter out of K.S.A. 12-1218 et seq. (hereinafter referred to as the municipal library statutes) and substitute its own provisions for the establishment and operation of a county library, including establishing an annual tax levy for the maintenance of the library.
K.S.A. 12-1218 et seq. create a procedure whereby a county, city, or township may establish a municipal library. If the electors approve the establishment and maintenance of a municipal library, the governing body(1) "shall forthwith establish such a library and . . . shall annually levy a tax for the maintenance . . . in such sum as the library board shall determine within the limitations fixed by law. . ."(2) Thus, a board of county commissioners is authorized to establish a county library, but it is the library board - not the board of county commissioners - that establishes the amount of the tax levy needed to maintain the library.(3) The only limitation on a library board is that the tax be "within the limitations fixed by law." You inquire whether "law" includes an ordinary resolution which, if so, would allow the county commissioners to establish a cap for the tax levy.
In Attorney General Opinion No. 97-31, Attorney General Carla J. Stovall considered whether K.S.A. 21-3105's definition of "crime" as an "act or omission defined by law" included a city ordinance. General Stovall concluded that whether the term "law" includes a city ordinance depends upon the intent of the statute.(4) With this in mind, we review the history of the municipal library statutes, enacted in 1951,(5) to determine whether the reference to "fixed by law" includes both statutes and county resolutions.
The municipal library statutes replaced earlier statutes authorizing counties to establish libraries.(6) Those earlier statutes authorized county commissioners to levy an annual tax not to exceed one-half mill to fund the library's operation.(7) Twelve years later, in 1933, the Legislature enacted K.S.A. 79-1947 which created a laundry list of specific levy limitations for counties.(8) The levy limitation for county libraries mirrored the statutory one-half mill.(9)
When the municipal library statutes were enacted in 1951, the reference in earlier county library statutes to a specific tax limit was replaced with the current verbiage that the library board would determine the amount "within the limitations fixed by law."(10) In that same enactment, K.S.A. 79-1947 was amended to fix an annual cap of 1. 5 mills for a county library.(11) Therefore, it would appear that "limitations fixed by law," as applied to county libraries, referred to the levy limitation established in K.S.A. 79-1947. This conclusion is supported by the Revised Statutes of 1951 which included an editorial reference following K.S.A. 12-1220: "Cross reference: Limit on tax levies, see §§ 79-1947. . . ."(12)
In light of the history of the municipal library statutes, it is our opinion that the reference to "limitations fixed by law" in K.S.A. 12-1220 means limitations fixed by statute. As K.S.A. 79-1947 was repealed in 1999,(13) there is no longer a mill levy cap for a library board established pursuant to K.S.A. 12-1218 et seq.
You also inquire whether a county may charter out of the municipal library statutes and create a county library with a tax levy established by the board of county commissioners.
A board of county commissioners may transact county business and perform all powers
of
local legislation and administration it deems appropriate, subject only to certain
limitations
and restrictions listed at K.S.A. 2005 Supp. 19-101a. One of the limitations is that
counties
are required to abide by all acts of the Legislature that apply uniformly to all counties.
Whether the municipal library statutes are a nonuniform enactment depends upon whether there is any provision that (1) is part of the enactment(16) and (2) treats counties differently.(17) It is our opinion that such a provision exists in K.S.A. 2005 Supp. 12-1222, which authorizes "the official head" of a county, except for Johnson County, to appoint five members to the library board. In Johnson County, seven members are appointed.(18)
K.S.A. 12-1222, which was part of the 1951 enactment,(19) was amended in 1985(20) to distinguish Johnson County from the rest of the counties by authorizing the appointment of seven, rather than five members, to the Johnson County library board. Therefore, applying the rationale in City of Junction City v. Griffin(21) and its progeny,(22) it is our opinion that the municipal library statutes do not apply uniformly to all counties.
However, this conclusion does not mean that counties may charter out of all of the provisions of the municipal library statutes. Unlike cities that enjoy constitutional home rule powers,(23) a county is prohibited from chartering out of statutes identified in K.S.A. 2005 Supp. 19-101a. Pursuant to this provision, counties cannot "exempt from or effect changes in" certain municipal library statutes, specifically K.S.A. 12-1223, 12-1225, 12-1225a, 12-1225b, 12-1225c, and 12-1226.(24) As this list does not include K.S.A. 12-1222, which is clearly nonuniform, it is our opinion that a county may charter out of the remaining provisions of the municipal library statutes, including K.S.A. 12-1220, which addresses the annual tax levy for library maintenance.
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1. "Governing body" includes a board of county commissioners. K.S.A. 12-1218(b).
2. K.S.A. 12-1220 (emphasis added).
3. Attorney General Opinions No. 82-193, 86-36.
4. Under the circumstances of that opinion, General Stovall concluded that "law," as used in K.S.A. 21-3105, included only statutes, not ordinances.
5. L. 1951, Ch. 485.
6. K.S.A. 19-1701 et seq. (repealed L. 1951, Ch. 485).
7. K.S.A. 19-1701 (repealed L. 1951, Ch. 485, § 24).
8. L. 1933, Ch. 309, § 3, codified at K.S.A. 79-1947 (repealed L. 1999, Ch. 154, § 78).
9. "The authority of the board of county commissioners of each of the several counties to fix a rate of levy annually for the following county purposes is hereby limited as follows: [L]ibrary: Establish and maintain, as authorized by section 19-1701, R.S. 1923 . . . 50 mill." L. 1933, Ch. 309, § 3, codified at K.S.A. 79-1947 (repealed L. 1999, Ch. 154, § 78).
10. K.S.A. 12-1220.
11. L. 1951, Ch. 485, § 19.
12. G.S. 1951 Supp. § 12-1220.
13. L. 1999, Ch. 154, § 78.
14. K.S.A. 2005 Supp. 19-101a(a)(1).
15. K.S.A. 19-101b(a).
16. Home Builders Ass'n of Greater Kansas City v. City of Overland Park, 22 Kan.App.2d 649, 663 (1996).
17. State of Kansas ex rel. Kline v. Unified Bd. of County Comm'rs of the Unified Government of Wyandotte County/Kansas City, Kansas, 277 Kan. 516 (2004); City of Junction City v. Griffin, 227 Kan. 332 (1980); Claflin v. Walsh, 212 Kan. 1, (1973).
18. K.S.A. 2005 Supp. 12-1222.
19. L. 1951, Ch. 485, § 5.
20. L. 1985, Ch. 72, § 1.
21. 227 Kan. 332 (1980) (Kansas Code of Procedure for Municipal Courts is a non-uniform enactment by virtue of one provision that requires municipal judges in cities of the first class to be attorneys while permitting cities of the second and third class to have judges who are not attorneys).
22. Note 18.
23. Kan. Const., Art. 12, § 5.
24. K.S.A. 2005 Supp. 19-101a(19).