Attorney General Opinion No. 1981-145 PDF Download
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Author: Robert T. Stephan
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An instrument, which secures payment of a debt and which "affects" real property by giving the lender a lien upon the real property, is a "mortgage of real property," as defined in K.S.A. 79-3101. Therefore, before such an instrument may be received and filed for record, a mortgage registration fee must be paid. Cited herein: K.S.A. 58-2221, 79-3101 and K.S.A. 1980 Supp. 79-3102.
Author: Robert T. Stephan
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An instrument, which secures payment of a debt and which "affects" real property by giving the lender a lien upon the real property, is a "mortgage of real property," as defined in K.S.A. 79-3101. Therefore, before such an instrument may be received and filed for record, a mortgage registration fee must be paid. Cited herein: K.S.A. 58-2221, 79-3101 and K.S.A. 1980 Supp. 79-3102.
Author: Robert T. Stephan
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Although the provisions of chapter 36 of the 1981 Session Laws of Kansas will result in an unusually large number of motor vehicle registrations at the end of calendar year 1981 and, correspondingly, will also result in an unusually large amount of money for that time of year in the special fund created under K.S.A. 1980 Supp. 8-145, any balance remaining in that special fund at the end of calendar year 1981 must be withdrawn and credited to the county general fund. Cited herein: K.S.A. 1980 Supp. 8-134 (as amended by L. 1981, ch. 36, section 2), K.S.A. 1980 Supp. 8-145, L. 1981, ch. 36, section 1.
Author: Robert T. Stephan
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There are no statutory obstacles to an election commissioner also holding the office of mayor of a city of the second class. Moreover, the common law doctrine of incompatibility of offices does not preclude such simultaneous incumbencies.
Author: Robert T. Stephan
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Through the imposition of fines for unlawful conduct, K.S.A. 1980 Supp. 8-1901(d) imposes criminal liability. In addition, subsection (a) of that statute does not appear to violate the United States Constitution's Equal Protection Clause, although it only imposes liability upon a limited class of persons. Moreover, that subsection appears to convey a sufficiently definite warning as to the conduct proscribed therein, so as to avoid being unconstitutionally vague and uncertain. Cited herein: K.S.A. 1980 Supp. 8-1901, 8-1909, K.S.A. 8-2116, 8-2204, 21-3105, K.S.A. 1980 Supp. 21-4503, U.S. Const., Amend. XIV.
Author: Robert T. Stephan
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Neither the provisions of K.S.A. 1980 Supp. 19-1803, nor the common law doctrine of incompatibility of offices, precludes a person from concurrently serving on the board of trustees of a county hospital and on the board of education of a local school district. Cited herein: K.S.A. 1980 Supp. 19-1803.
Author: Robert T. Stephan
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A county election officer has no authority to determine the sufficiency of the question stated in the petition for elections but such officer may find a petition insufficient for failure to include an individual date line for each petitioner signing. Cited herein: K.S.A. 25-3601, K.S.A. 1980 Supp. 25-3602, Kan. Const., Art. 12, section 5.
Author: Robert T. Stephan
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The statutory requirements for the execution of deeds and other instruments for the conveyance of a corporation's real property or an interest therein are prescribed by K.S.A. 17-6003(g). As long as there is compliance with such requirements, provisions in the corporation's bylaws requiring execution of such instruments by officers of the corporation in addition to those specified in said statute are permissible. However, failure to comply with these bylaw requirements does not, as a general rule, affect the validity of a conveyance made in compliance with the statutory requirements. Cited herein: K.S.A. 17-6003, K.S.A. 1980 Supp. 17-6009, G.S. 1868, ch. 23, section 38.
Author: Robert T. Stephan
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K.S.A. 19-723, which authorizes the board of county commissioners to employ an additional attorney to assist the county attorney, involves a discretionary power held by the board and does not mandate such special assistant be employed. Cited herein: K.S.A. 19-723, G.S. 1949, 19-718.
Author: Robert T. Stephan
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Under the provisions of K.S.A. 1980 Supp. 22-4504 (as amended by L. 1981, ch. 157, sec. 1), the board of supervisors of panels to aid indigent defendants is empowered to adopt rules and regulations concerning the ability of a defendant in a criminal action to retain counsel to assist in his defense. Such rules and regulations specifically relate to the income, assets and anticipated costs of representation of a defendant. Pursuant to the 1981 amendment, such rules and regulations are controlling on any determination by a judge or magistrate as to whether a defendant is financially unable to employ counsel. Moreover, these rules and regulations are adopted in accordance with K.S.A. 77-415 e̲t̲ s̲e̲q̲., thus allowing the legislature to modify or reject them through the adoption of a concurrent resolution (K.S.A. 1980 Supp. 77-426). Insofar as the making of indigency determinations involves the resolution of questions of fact, which is a judicial and not a legislative function, control by the legislature over such determinations is an impermissible interference with the authority of another department of government. Accordingly, those provisions of L. 1981, ch. 157 which require the submission of such rules and regulations to the legislature and which make any rules and regulations so adopted binding on district courts are unconstitutional as violative of the separation of powers doctrine. Cited herein: K.S.A. 1980 Supp. 22-4501, 22-4504 (as amended by L. 1981, ch. 157, section 1), 22-4507, K.S.A. 22-4512, K.S.A. 1980 Supp. 22-4514, 77-415 (as amended by L. 1981, ch. 157, section 3), Kansas Constitution, Article 3, Section 1, United States Bill of Rights, Sixth Amendment, Fourteenth Amendment.
Author: Robert T. Stephan
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The county treasurer has control over the means by which the duties imposed under the state motor vehicle registration laws are to be fulfilled. Thus, the county treasurer, and not the board of county commissioners, has the authority to fix the salaries of the necessary help needed to fulfill those duties. However, the county has no responsibility or authority to give financial assistance to the county treasurer in regard to the administration of the state motor vehicle registration laws. The financial resources available to the county treasurer to administer these laws are confined, by K.S.A. 1981 Supp. 8-145, to the amount deposited in the special fund provided for in that statute. (Attorney General Opinion No. 77-39 is withdrawn.) Cited herein: K.S.A. 1981 Supp. 8-145.
