February 9, 2006

ATTORNEY GENERAL OPINION NO. 2006- 4

Daniel H. Diepenbrock

Seward County Counselor

223 North Kansas, P.O. Box 2677

Liberal, Kansas 67005

Re:	Cities and Municipalities--Libraries--City, County, and Township Libraries; Election to Establish; Annual Tax Levy

Counties and County Officers--General Provisions--Home Rule Powers; Limitations, Restrictions and Prohibitions; Procedure; Chartering Out of Municipal Library Statutes

Synopsis:	A board of county commissioners may establish a county library pursuant to K.S.A. 12-1218 et seq., but may not impose a cap on the amount of the tax levy determined by the library board to be necessary to maintain the library. However, because the municipal library statutes do not apply uniformly to all counties, a county may charter out of certain provisions and establish a tax levy for the maintenance of the county library. Cited herein: K.S.A 12-1218; 12-1220; K.S.A. 2005 Supp. 12-1222; K.S.A. 12-1223; 12-1225; 12-1225a; 12-1225b; 12-1225c; K.S.A. 2005 Supp. 12-1226; 19-101a; K.S.A. 19-1701 (repealed, L. 1951, Ch. 485, § 24); K.S.A. 2005 Supp. 21-3105; K.S.A. 79-
1947 (repealed L. 1999, Ch. 154, § 78); Kan. Const., Art. 12, § 5.

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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 body1 "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.14 However, if a legislative enactment does not apply uniformly, a county may elect to charter out of any of the enactment's provisions unless one of the other limitations or restrictions in K.S.A. 2005 Supp. 19-101a applies.15

Whether the municipal library statutes are a nonuniform enactment depends upon whether there is any provision that (1) is part of the enactment16 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 198520 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. Griffin21 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.

Sincerely,

Phill Kline

Attorney General

Mary Feighny

Assistant Attorney General

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