City Home Rule A Brief Review. A. Cities and the Kansas Constitution prior to July 1, 1961

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1 Mike Heim Revisor of Statutes Office June 6, 2014 City Home Rule A Brief Review I. Introduction A. Cities and the Kansas Constitution prior to July 1, 1961 Art. 12, 5 of the Kansas Constitution in Provision shall be made by general law for the organization of cities, towns and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power. B. Article 2, 17 of the Kansas Constitution in 1960: 17. All laws of a general nature shall have a uniform operation throughout the state[; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state]: Provided, The legislature may designated areas in counties that have become urban in character as urban areas and enact special laws giving to such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper. *Language in brackets was deleted by constitutional amendment in C. Dillon s Rule 1. Local governments are considered creatures of the state as well as subdivisions of the state and as such are dependent upon the state for their existence, structure and scope of powers. See Hunter v Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907). State Legislatures have plenary power over the local units of government they create, limited only by such restrictions they have imposed upon themselves by state law and by provisions of their state constitutions, most notably home rule provisions. Other constitutional limitations upon the power of the states also exist in some states, such as prohibitions against the enactment of special laws or the creation of special commissions to exercise local government powers.

2 2 2. Dillon s Rule, although formulated by the courts for cities, is a reflection of the general dependency of all local governments upon state legislatures absent a home rule grant of authority. Dillon s Rule states: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied... These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations... See Dillon, Municipal Corporations, 237 (5th ed. 1911). See for example, Johnston v City of Coffeyville et al, 157 Kan. 357 (1953), where the court cited an earlier case as follows: It was early held, and over the years the rule has been, that a municipal corporation is a creation of law and can exercise only powers conferred by law and take none by implication Dillon s Rule and the special laws constitutional prohibition were evident in many laws affecting cities. See, for example, the following: a. K.S.A The governing body of a city of the first class having a population of more than sixty thousand (60,000) and less than one hundred twenty-five thousand (125,000) is authorized to levy annually a general tax on all property in such city to pay for the cost of fire protection. The levy for such purposes shall not exceed 0.75 of a mill. When said taxes are collected it shall be the duty of the city treasurer to immediately transfer the same to the general fund of the waterworks department in payment of the cost of fire protection. (Repealed 1969). b. K.S.A The governing body of cities of the third class may levy an annual tax on all taxable tangible property in such city for the purpose of constructing, equipping, maintaining and defraying the cost of lighting the streets of such city and to pay apportion of the principal and interest on bonds issued by such city under the authority of K.S.A , and amendments thereto.

3 3 II. City Home Rule A. New Era A new era in city-state relations was inaugurated on July 1, 1961, the effective date of the City Home Rule Amendment approved by voters at the November 1960 general election. Since that date, cities can look directly to the Kansas Constitution, Article 12, 5, for the source of their powers. Cities are no longer dependent upon specific enabling acts of the Legislature since the Home Rule Amendment has, in effect, stood Dillon s Rule on its head by providing a direct source of legislative power for cities. See Clark, State Control of Local Government In Kansas, Special Legislation and Home Rule, 20 Kan. L. Rev. 631 at 654 (1972). B. Kansas Constitution Art. 12, 5 states, in part, the following: (b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature*, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. All enactments relating to cities now in effect or hereafter enacted and as later amended and until repealed shall govern cities except as cities shall exempt themselves by charter ordinances as herein provided for in subsection (c). (d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government. *See Ramcharan Maharajh v Gilliland, 48 K.A. 2d 137, 286 P.3d 216 (2012), which said that the Kansas Constitution Article 12, 5(b) provides for referendums only in such cases as prescribed by the Legislature. The

4 4 court concluded unless a statute authorizes an election it can t be had. Could this constitutional language be read in a less restrictive manner to require elections only when required by statute but to allow elections authorized under home rule? C. General Characteristics of City Home Rule 1. The Kansas Home Rule Amendment applies to all cities respectively regardless of their size. Further, the constitutional grant is self-executing in that there is no requirement that the Legislature enact any law implementing it, nor are cities or required to hold an election, to adopt a charter, constitution or some type of ordinance declaring their intent to exercise home rule powers. No charter or local constitution need be adopted nor any election held to achieve the power. 2. The home rule provisions adopted in various states have been classified by some scholars into two basic types: (l) The initiative or legislative type, under which a city may initiate legislation subject to ultimate state control (Kansas fits this model); and (2) the autonomy type, in which a city remains free of all control of the Legislature in matters of local concern. In the initiative or legislative model, all power that the Legislature would be capable of delegating to cities is delegated by the Home Rule Amendment. The Legislature, however, is given the power to withdraw or limit home rule powers as provided in the constitutional grant. Under the autonomy model, also known as the imperium in imperio or state within a state model, cities have exclusive control over their municipal affairs and the state Legislature is without power to invade this municipal territory. State laws that do invade this municipal territory are unenforceable. 3. The city Home Rule Amendment serves a twofold purpose: As a sword or direct source for city or local legislative power and as a constitutional limit or shield on state legislative control over the affairs of cities. Both aspects of the amendment must be understood to fully appreciate how the relationship of cities and the state and, more specifically, the state legislature has changed. III. How City Home Rule is Exercised: Ordinary versus Charter Ordinances A. City Ordinances

5 5 Home rule powers of cities must be exercised by ordinance. See Kansas Constitution Article 12, 5(c). City ordinances are subject to certain formalities and other requirements that are contained in K.S.A et seq. A city that attempts to exercise home rule powers through a resolution rather than an ordinance does not meet the constitutional requirement noted above and as a result the action of the city is invalid. B. Ordinary Home Rule Ordinances The term ordinary ordinance was coined after the passage of the Home Rule Amendment but is not specifically used therein. The intent of using the term is to distinguish ordinances passed under home rule authority which are not charter ordinances from other ordinances enacted by cities under specific enabling acts of the legislature. Ordinary ordinances are those referred to in Article 12, 5(b), where it provides that...cities shall exercise such determination (home rule) by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature... According to one commentator, Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L.Rev. 631 at 658, the above language is the most significant aspect of the Home Rule Amendment since it gives Kansas cities the power to initiate legislation by ordinance without having to rely on enabling statutes. Clark s term for this power and procedure is affirmative home rule. 1. Where No State Law Exists There are several instances where cities may use ordinary home rule ordinances. The first instance is when a city desires to act and there is no state law on the subject sought to be addressed by the local legislation. The regulation and licensure of massage parlors or adult entertainment studios has been regulated by cities and counties. Regulations were upheld in a county court case in Moody v Board of Shawnee County Commissioners, 237 Kan. 67, 697 P.2d 1310 (1985). Another example of this type of home rule action is illustrated in the situation which a city became a limited partner in an enterprise to construct a wind turbine system and to sell electricity. See Op. Att y Gen. 160 (1981). See also Op. Att y Gen. 55 (2000) where cities were said to have the power under home rule to prohibit ticket scalping at sporting or entertainment events on state and federal property if needed.

6 6 In contrast to home rule authority, a state statute was the basis for enacting a smoking ordinance in Steffes v City of Lawrence, 284 Kan. 380, 160 P.3d 843 (2007), where the court upheld a smoking ban in public places imposed by the City of Lawrence under then K.S.A which is now found at K.S.A Local Supplement to a State Law The second instance where cities may enact ordinary home rule ordinances is when there is a uniform state law on the subject, the city wants to supplement the state law and there is no preemption and no conflict between the state law and the local addition or supplement. a. The Kansas Supreme Court upheld a Wichita ordinance extending the city s driving under the influence (DUI) ordinance to cover operating a bicycle while under the influence. See City of Wichita v Hackett, 275 Kan. 848, 69 P.3d. 621 (2003) where the court noted state law did not expressly authorize riding a bicycle under the influence of alcohol - state law merely failed to proscribe it. b. See Hutchinson Human Relations Commission v Midland Credit Management, Inc., 213 Kan. 308, 517 P.2d 158 (1973) where the court affirmed the ability of cities to establish local civil rights agencies despite the existence of a state civil rights commission and of state laws prohibiting acts of discrimination. c. The use of home rule was the underlying assumption of the court in City of Junction City v Lee, 216 Kan. 495, 499, 532 P.2d 1292 (1975) when the court upheld an ordinary home rule ordinance defining the crime of unlawful use of weapons as the carrying of both concealed and unconcealed weapons. A uniform state law made it a crime only to carry a concealed weapon. d. In State ex rel Franklin v City of Topeka, 266 Kan. 385, 969 P.2d 852 (1998), the court upheld the application of a city anti-discrimination ordinance to an employee of a state agency, the Kansas Department of

7 7 Human Resources. The court held the state agency was subject to the city anti-discrimination ordinance and that the Kansas Act Against Discrimination did not supersede or prohibit the application of a city antidiscrimination ordinances to state employees and state agencies. 3. Supplement to a Charter Ordinance A third instance of where an ordinary home rule ordinance may be used is as a supplement to a charter ordinance. This is the situation the Kansas Supreme Court addressed in Farha v City of Wichita, 284 Kan. 507, 161 P.3d 717 (2007). The City of Wichita passed a charter ordinance exempting itself from a provision of the Kansas Code of Procedure for Municipal Courts which prohibits the imposition of court costs on defendants. The charter ordinance authorized the city to assess costs in certain cases and stated the specific costs would be set in the city code. A separate ordinary ordinance was passed by the city establishing court cost amounts tied to specific offenses and witness fees. Plaintiff argued the court cost schedule should have been included in the charter ordinance. The court held that the substitute and additional provisions requirement of Article 12 5(c)(3) was met by the city s charter ordinance. Note: A city s charter ordinance should contain sufficient additional or substitute provisions to meet the constitutional test. A charter ordinance simply exempting a city from a non-uniform statute followed by a trailer ordinary ordinance likely would not pass constitutional muster. C. Home Rule: Charter Ordinances 1. Article 12, 5(c) of the Kansas Constitution states: (c) (1) Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city. (2) A charter ordinance is an ordinance which exempts a city from the whole or any part of any enactment of the legislature as referred to in this section and which may provide substitute and

8 8 additional provisions on the same subject. Such charter ordinance shall be so titled, shall designate specifically the enactment of the legislature or part thereof made inapplicable to such city by the adoption of such ordinance and contain the substitute and additional provisions, if any, and shall require a two-thirds vote of the members-elect of the governing body of such city. Every charter ordinance shall be published once each week for two consecutive weeks in the official city newspaper or, if there is none, in a newspaper of general circulation in the city. (3) No charter ordinance shall take effect until sixty days after its final publication. If within sixty days of its final publication a petition signed by a number of electors of the city equal to not less than ten percent of the number of electors who voted at the last preceding regular city election shall be filed in the office of the clerk of such city demanding that such ordinance be submitted to a vote of the electors, it shall not take effect until submitted to a referendum and approved by a majority of the electors voting thereon. An election, if called, shall be called within thirty days and held within ninety days after the filing of the petition. The governing body shall pass an ordinance calling the election and fixing the date, which ordinance shall be published once each week for three consecutive weeks in the official city newspaper or, if there be none, in a newspaper of general circulation in the city, and the election shall be conducted as elections for officers and by the officers handling such elections. The proposition shall be: "Shall charter ordinance No., entitled (title of ordinance) take effect?" The governing body may submit any charter ordinance to a referendum without petition by the same publication of the charter ordinance and the same publication of the ordinance calling the election as for ordinances upon petition and such charter ordinance shall then become effective when approved by a majority of the electors voting thereon. Each charter ordinance becoming effective shall be recorded by the clerk in a book maintained for that purpose with a statement of the manner of adoption and a certified copy shall be filed with the secretary of state, who shall keep an index of the same. (4) Each charter ordinance enacted shall control and prevail over any prior or subsequent act of the governing body of the city and may be repealed or amended only by charter ordinance or by enactments of the legislature applicable to all cities.

9 Several subsections of Article 5, 12 of the Kansas Constitution limit the use of charter ordinances. These limits include: 9 1. Existing laws on city incorporation, boundary changes, merger, and consolidation (Article 12, 5(a)); 2. nonuniform laws where the Legislature has established not to exceed four classes of cities for the levy of taxes, excises, fees, charges and other exactions (Article 12, 5(b)); Note: Several cities utilized charter ordinances to raise local sales tax rates above statutory limits when the local sales tax act contained more than four classes. 3. enactments of statewide concern applying uniformly to all cities (Article 15, 5(c)(1)); 4. enactments applying uniformly to all cities (Article 12, 5(c)(1)); and 5. enactments prescribing limits of indebtedness (Art. 12, 5(c)(1)). D. City Charter Ordinance Procedure Article 12, 5(c)(2) of the Kansas Constitution provides that a charter ordinance shall be so titled and shall designate specifically the legislative enactment made inapplicable to the city. It requires a 2/3 vote of the members-elect of the governing body of the city. See Op. Att y. Gen. 18 (2005), which said the mayor was considered part of the governing body of the City of Topeka in reference to the number of votes needed to pass a charter ordinance. Publication of the charter ordinance is required once each week for two consecutive weeks in the official city newspaper or, if none, then in a newspaper of general circulation. A 60-day waiting period is mandated after the first publication to allow for a protest petition 10% of those who voted at the last regular city election. Election procedures also are set out in detail if a protest petition is filed and include the wording for the ballot. The governing body may submit any charter ordinance to a referendum without a petition. The charter ordinance becomes effective upon approval of a majority of the electorate voting thereon or after the expiration of the 60-day protest petition period. There is also a requirement that charter ordinances be maintained in a book by the city clerk and a certified copy be filed with the Secretary of State. See Article 12, 5(c)(3). E. City Charter Ordinance Amendment or Repeal Article 12, 5(c)(4) of the Kansas Constitution provides that each charter ordinance enacted shall control and prevail over any prior or subsequent act of the governing body of the city

10 10 and may be repealed or amended only by charter ordinance or by enactments of the Legislature applicable to all cities. In Edgington v City of Overland Park, 15 K.A. 2d 721, 727-8, 815 P.2d 1116 (1991), the court held that a charter ordinance amending another charter ordinance need not specify the state statute made inapplicable to the city by the passage of the earlier charter ordinance and those portions of the earlier charter ordinance not amended by the latter charter ordinance still remain in effect. The court in Bigs v City of Wichita, 271 Kan. 455, 23 P.3d 855 (2001), held that a repeal of a non-uniform provision in the club and drinking establishment act was sufficient to cause the repeal of a city charter ordinance which had provided for a higher liquor license fee than the statute allowed. The court in State ex rel Tomasic v Unified Government of Wyandotte County/Kansas City, Kansas, 264 Kan. 293, 955 P.2d 1136 (1998), addressed the issue of whether the form of government of Kansas City, Kansas, which had been established by charter ordinance had been properly changed as a result of the consolidation of the city and county. The district attorney contended that under Article 12, 5(c)(4), of the Kansas Constitution, the Legislature cannot repeal or amend Charter Ordinances, except by passage of a law applicable to all cities. The consolidation law applied only to Kansas City, Kansas and Wyandotte County. The court, through some legal gymnastics, upheld the consolidation law. F. Uniform Laws and Preemption The legislature, with some frequency, has preempted city home rule by passage of a uniform law which also contains clear preemptive language. Both are normally required. Some uniform laws, however, do not need any preemptive language since the law simply prohibits any action by a city. The primary areas where the legislature has preempted local action are in the levy of taxes, excises, fees, charges, and other exactions, in licensing and other regulatory activities in gun control and in gaming. See the following: 1. K.S.A prohibits any city or county or other political subdivision from enacting or enforcing any law, ordinance, rule or regulation in conflict with, in addition to, or supplemental to the Kansas pesticide law and expressly invalidates any such law. 2. K.S.A states that any person licensed as an operator or chauffeur under the drivers license act is not required to obtain any other license to exercise the privilege of driving upon the streets and highways from any local authority. However, cities can require licenses of taxi or bus drivers to establish character standards of operators. 3. K.S.A provides that no city shall have power to levy and collect taxes on income from whatever source derived.

11 11 4. K.S.A provides that no city shall impose a retailer s tax, excise tax, or tax in the nature of an excise upon the sale of cigarettes or cereal malt beverages and malt extract other than a retailer s sales tax. 5. K.S.A provides that the powers of cities to impose license or occupation taxes upon peddlers and vendors shall not be construed so as to apply to, or create the power to impose license taxes or occupation taxes upon producers and growers, or their agents or employees engaged in the sale of agriculture, farm or garden products grown within the state. 6. K.S.A ,124 prohibits cities and counties from adopting or enforcing any ordinance, resolution or regulation governing the purchase, transfer, ownership, storage, carrying or transportation of firearms or ammunition. No city or county may adopt or enforce any ordinance resolution or regulation relating to the sale of firearms by a person who holds a federal firearms license that is more restrictive than other regulations relating to the sale of commercial goods. 7. K.S.A ,134 prohibits cities and counties and other from enacting or enforcing any ordinance, resolution, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, licensing or use of any knife or knife making component. 8. K.S.A ,130 et seq. prohibits cities, counties and other local governments from enacting any local laws requiring private employers to provide wages and certain other benefits at a higher level than required by state or federal law. 9. K.S.A prohibits political subdivisions (cities and counties) from imposing any license, privilege, premium, or gross receipts tax or fee or any occupation tax based upon income, premiums, or gross receipts upon any life, fire and casualty, hail and county mutual fire insurance company organized under state laws. K.S.A provides that the taxes and fees paid to the state by mutual insurance companies organized within or authorized to do business within the state are in lieu of all city fees, licenses, and taxes except those levied under other provisions of law. 10. K.S.A vests in the state the exclusive control of regulating the distribution, sale, possession, transportation and traffic in alcoholic liquor, and the manufacture of beer but permits any city to prohibit by ordinance what is prohibited by state law as long as the minimum and maximum penalties for violation are the same. See Kline v Unified Government of Wyandotte County/Kansas City, Kansas, 277 Kan. 516, 85 P.3d 1237 (2004), which held this statement of clear legislative intent to preempt was not enough to prevent the City of Kansas City to pass a charter ordinance and allow Sunday sales of liquor since the Kansas Liquor Control Act contained at least three sections which do not apply uniformly to all cities. The Legislature, however, amended the law in 2005 to make it uniformly applicable to all cities.

12 K.S.A prohibits the levy of any taxes, fees, charges, transfers, or distribution by cities, counties, or other municipalities from or against any lottery gaming facilities revenues or electronic gaming revenues from racetrack gaming. 12. K.S.A. 75-7c17 makes any city, county, or other political subdivision ordinance, resolution or regulation null and void on the subject of carrying a concealed weapon unless authorized by the personal and family protection act. 13. K.S.A provides that no municipal corporation or other political subdivision shall levy or collect any tax upon, or measured by, the sale, receipt, distribution, or use of motor vehicle fuel, or any excise, license, privilege, or occupation tax upon the business of manufacturing, using, selling, or delivering motor vehicle fuels. See Executive Aircraft Consulting, Inc. v City of Newton, 252 Kan. 421, 845 P.2d 57 (1992), wherein the court invalidated a fuel flowage fee imposed by the City of Newton and Harvey County in violation of this statutory prohibition. 14. K.S.A vests exclusive power in the state to regulate, license, and tax bingo games. G. What Is A Uniform Enactment? The clearest statement by the court concerning what is a uniform enactment applicable to all cities is found in the flagship city home rule case of City of Junction City v Griffin, 227 Kan. 332, 607 P.2d 459 (1980), and reaffirmed in Kline, 277 Kan. 516 (2004), and in Farha, 284 Kan. 507 (2007). The Griffin court determined that the entire Kansas Code of Procedure for Municipal Courts (K.S.A through ) did not apply uniformly to all cities since one section of that act, K.S.A , required municipal judges in cities of the first class to be attorneys but did not require the same of municipal judges in cities of the second or third class. The court noted that this section was one of the sections included in L. 1973, ch. 61 and was clearly one of the sections comprising the legislative enactment. The court stated: The division into chapter, article and sections in the Kansas Statutes Annotated does not have the effect of making separate enactments of a single bill passed by the Legislature of the State of Kansas. The Griffin court cited Marks v Frantz, 179 Kan. 638, 644, 298 P.2d 316 (1956), which contains the same summary conclusion. An enactment, then, is all sections of a single bill enacted by the Kansas Legislature. Every section of a bill must apply uniformly to all cities if the bill is to be a uniform enactment (Id. at ). The Griffin court went on to state:

13 13 Regardless of whether an enactment of the state legislature addresses a matter of statewide or a matter of local concern, a city may in either case act by charter ordinance to exempt itself from all or part of the enactment unless the state enactment applies uniformly to all cities (Id. at 337). The Griffin court specifically held that a statutory expression of intent to make a law uniformly applicable to all cities cannot supplant the constitutional requisite of uniformity. The Kansas Constitution empowers a city by charter ordinance to opt out of a state enactment which is not uniformly applicable to all cities or which does not have uniform application of the law to all cities. Note: two justices argued that the Legislature s intent to preempt the area was clear and the court should have struck the judicial qualification provision to make the municipal court code comply with legislative intent. Griffin, 227 Kan. at 341. H. In Pari Materia and Uniform Enactments Clafin v Walsh, 212 Kan. 1, 509 P.2d 1130 (1973), is the home rule case most frequently cited regarding the doctrine of in pari materia. In Claflin, the court upheld a Kansas City charter ordinance exempting the city from K.S.A and providing substitute provisions transferring management and control of the soldiers and sailors memorial building from a board of trustees to the city commissioners. The issue was whether K.S.A was applicable uniformly to all cities and, therefore, not subject to charter ordinance. The court found that the statute was not uniformly applicable to all cities because it permitted three exceptions in its application to various cities. Moreover, the court noted that another statute, K.S.A , which was part of a separate enactment, authorized control of memorials by certain city governing bodies. In determining whether the Legislature intended to have a statute apply uniformly to all cities, the court concluded that all statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together: In order for a statute to be applicable uniformly to all cities there must be no exceptions. (212 Kan. at. 9). See Newman Memorial Hospital v Walton Construction Company, Inc., 37 K.A. 2d 46, 67-69, 149 P.3d 525 (2007), for a more recent discussion of the in pari materia doctrine, including a discussion of Kansas case law and other sources. The case does not deal with home rule issues. I. Conflicts and Uniform Enactment The test most frequently cited to determine whether a conflict exists is found in the City of Junction City v Lee, 216 Kan. 495 (1975) case, cited in City of Wichita v Hackett, 275 Kan. 848, 851, 69 P.3d 621 (2003), as follows: Does the local law permit or license that which the state law forbids or prohibit that which the state statutes authorize? If so, there is a conflict. Where both a local law and the statute are prohibitory and the local law goes further in its prohibition but not counter to the state prohibition, there is no conflict.

14 14 IV. Home Rule and City Incorporation and Boundary Matters A. Introduction The Kansas Home Rule Amendment, Article 12, 5(a) of the Kansas Constitution provides: The legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, that existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect until superseded by general law and such existing laws shall not be subject to charter ordinance. B. What does General Law Applicable to all Cities mean? It is generally recognized that this language reserves for the legislature the power to enact laws relating to city incorporations and other boundary matters. See Crumbaker et al. v Hunt Midwest Mining, Inc., 275 Kan. 872, 69 P.3d 601 (2003), where the court said the power of a municipality to alter its boundaries by annexation is vested absolutely and exclusively in the legislature. It is unclear, however, the exact nature of the limit on legislative power which this section also affects. The key question is what is intended by the use of the term general law, applicable to all cities. Does the term general law, applicable to all cities, mean that laws must be uniformly applicable to all cities? It has been argued that the constitutional language strongly implies that a uniform law is required and this was the assumption of commentators who wrote near the time the Home Rule Amendment was adopted. See Martin, Home Rule for Kansas Cities, 10 Kan.L Rev (1962) and Crummett, City Home Rule in Kansas, 9 Washburn L.R. 1, 9-12, (1969). The problem with this interpretation is that the Home Rule Amendment in several other places uses the terminology enactments of the Legislature applicable uniformly to all cities. See Kansas Constitution, Article 12, 5(b) and 5(c). Further,

15 15 Article 2, 17 contains the phrase All laws of a general nature shall have a uniform operation throughout the state. Until 1974, when Article 2, 17 was last amended, as noted earlier, it likewise contained a general prohibition against special legislation where a general law could be made applicable. The section still contains the reservation of the authority of the Legislature to designate urban areas in counties and to enact special laws giving one or more counties such powers of local government and consolidation of local government as deemed proper. The Kansas Supreme Court has addressed the issue of whether the terminology general law equates with enactments uniformly applicable to all cities. For example, in Board of Riley County Commissioners v City of Junction City, 233 Kan. 947, 667 P.2d 868 (1983), the court rejected an argument that 1982 HB 3166 (K.S.A ) prohibiting the governing body of any city form annexing any territory of a military reservation under control of the Secretary of the Department of Army retroactive to December 31, 1981 violated the general law requirement of Home Rule Amendment. The Supreme Court affirmed the district court s opinion in which the lower court had noted the difference in the terms general law of the Home Rule Amendment and all laws of a general nature language found in Article 2, 17 of the Kansas Constitution. The district court pointed out the historical difference in the two phrases as noted in Stephan v Snyder Clinic Ass n, 230 Kan. 115, 631 P.2d 222 (1981) as follows: The difference between a law of a general nature and a general law is that the subject matter of the former must be one common to the people of the entire state, while all that is required of the latter is uniformity of operation (pp ). The ruling in City of Junction City was affirmed in Dillon Real Estate Co. v City of Topeka, 284 Kan. 662, 163 P.3d 298 (2007). The City of Topeka attempted to annex 10 acres of land a portion of which was within the Sherwood Improvement District. K.S.A (c) prohibits a city from unilaterally annexing land within an improvement district organized under K.S.A et seq. when the petition for incorporation of the improved district was presented on or before January 1, The provision is the socalled Sherwood amendment. The Court said the provision did not

16 16 violate Article 12, 5 of the Kansas Constitution requiring a general law. C. Art. 12, 5(a) Applies to City City Consolidation not City County Consolidation The court in State ex rel Tomasic v Unified Government of Wyandotte County/Kansas City, Kansas, 264 Kan. 293, 955 P.2d 1136 (1998) held that the consolidation referred to in Art. 12, 5 applied only to consolidation involving two cities. Under this provision, in order for a city to merge, consolidate, or dissolve, the Legislature must enact a general law applicable to all cities. The court noted that K.S.A et seq. was not a general law applicable to all cities, but one narrowly confined to Kansas City and Wyandotte County. The district attorney thus claimed that the act unconstitutionally violated Article 12, 5(a). The court noted that the state law does not involve the consolidation of cities but instead, concerned the consolidation of a large city with a county almost the same geographic size. IV. Home Rule: A Taxing Issue A. Classes of Cities for Tax Purposes Cities are granted the power to levy taxes, excises, fees, charges and other exactions by the Home Rule Amendment (Article 12, 5(b)). The Legislature, however, may restrict this power by establishing not to exceed four classes of cities. These classes are not classes for general government purposes: cities of the first, second and third class. Rather, these are constitutional classes for purposes of imposing revenue limitations or prohibitions. See Martin, Home Rule For Kansas Cities, 10 Kan. L. Rev. 501 at 505 (1962). The only example to date where the Legislature had classified cities for the purpose imposing limits upon or prohibiting taxes has been in the area of local retailers sales taxes. K.S.A , repealed in 2006, contained four classes of cities established by the Legislature:

17 17 for the purpose of imposing limitations and prohibitions upon the levying of sales and excise taxes or taxes in the nature of an excise upon sales or transfers of real property or the use thereof, or the rendering or furnishing of services by cities as authorized and provided by Article 12, 5 of the constitution of the state of Kansas. These classes included the following: Class A cities are all cities which have the authority to levy and collect local sales taxes; Class B cities are those cities which have authority to levy a local sales tax for health care services; Class C cities are all cities (Wichita) with a population of more than 290,000 located in a county with more than 350,000; and Class D cities are all cities located in Cowley, Ellis, Ellsworth, Finney, Harper, Johnson, Labette, Lyon, Montgomery, Osage, Reno, Woodson, or Wyandotte counties and cities (Manhattan) located in both Riley and Pottawatomie counties. The Legislature in 2006, recodified the local retailers, sales tax law and repealed K.S.A in an attempt to eliminate the non-uniformity or multiple classes of cities. B. Too Many Classes The Court of Appeals in Home Builders Association v City of Overland Park, 22 K.A. 2d 649, 668, 921 P.2d 234 (1996) held that the Kansas Local Retailers Sales Tax Act was not uniform and therefore was subject to charter ordinance by a city. The court upheld the charter ordinance and three ordinary ordinances which imposed an excise tax to be paid by those who apply for plat approval and recordation in the city. The court held that K.S.A prohibiting excise taxes was a part of the local sales tax act and that the entire local sales tax act was nonuniform since the legislature has treated cities within the same class (Class B) in a nonuniform manner. C. Charter Ordinances and Tax Classifications The Home Rule Amendment, Article 12, 5(c), when describing the use of charter ordinances does not exclude the use of such ordinances in reference to the four classes of cities that the legislature may create under Article 12, 5, to impose limits of

18 18 cities taxing powers. It seems logical, however, to assume that if the legislature exceeds its constitutional limitation by establishing more than four classes of cities for tax excises, fees, charges, and other exaction purposes, cities should not be bound by such laws. One of two alternatives seem appropriate: 1. the law is simply a nullity and has no impact on a city s power to decide the tax issue in question; or 2. the law is treated as a non-uniform enactment and is binding on a city unless it passes a charter ordinance to exempt itself from the resolution. The latter option which was adopted by the Court of Appeals in the Home Builders case, seems preferable in upholding the integrity of state legislative enactments while at the same time preserving the City home rule authority and the constitutional mandate for liberal construction of this power. Kansas City Renaissance Festival Corp. v City of Bonner Springs, 269 Kan. 670, 8 P.3d 701 (2000) held that a city s ordinary home rule ordinance establishing an amusements admission tax was invalid thus indicating perhaps that a charter ordinance was necessary. The court rejected the city s argument (the first option noted above) that the city was not bound by any tax limiting legislation that was not uniformly applicable to all cities or at least uniformly applicable to cities within one of the four classes permitted under Article 12, 5. The court noted that it was not deciding whether the Legislature had restored the uniformity in regard to the four classes of cities under the local sales tax act by the passage of 1998 HB 2584 (L. 1998, ch. 188). The court distinguished Clark v City of Overland Park, 226 Kan. 609, 602 P.2d 1292 (1979), saying the key issue then was which of two statutes applied: the home rule tax procedure law (K.S.A ), or the local sales tax law (then K.S.A ), whereas the current case dealt with K.S.A which specifically prohibited the type of tax Bonner Springs had enacted. The court seemed to gloss over the key fact in Clark that K.S.A applied to Overland Park and required an election whereas the city opted to adopt an ordinary home rule ordinance under K.S.A which provides for a protest petition and an election but only if a protest petition is raised. Note: K.S.A was enacted in 1961 and requires any city imposing a tax, fee, charge or exaction for revenue purposes

19 19 under home rule to follow basically the same procedure for enacting a charter ordinance. D. Not a Class Issue In Farha v City of Wichita, 284 Kan. 507, 161 P.3d 717 (2007), a case dealing with a challenge to the city imposing court costs, the court said that the Kansas Code of Procedure for Municipal Courts had a broader purpose than prohibiting the levy of any tax, excise, fee, charge, or other exaction. Therefore, analysis of whether the legislature had created a class of cities for tax purposes under Article 12, 5(b) was not an appropriate question. See also City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d. 667 (1994) where the appellant taxpayers argued unsuccessfully that a provision in the Kansas Water Pollution Control Act (K.S.A ) which gave cities of the first class with a board of public utilities the ability to charge and collect bills through the board, was a class contemplated by Article 12, 12(b).