Kansas Attorney General Opinion 1992-136

ROBERT T. STEPHAN
ATTORNEY GENERAL
October 27, 1992
ATTORNEY GENERAL OPINION NO. 92- 136
Douglas D. Depew
Cherryvale City Attorney
620 Main Street
P.O. Box 313
Neodesha, Kansas 66757
Re: Cities of Second Class; Commission Government--
Commission Form of Government--Abandonment of
..---"- Organization Under Act; Petition; Time of Election;
Number of Wards
Elections--Sufficiency of Petitions--Petition
Documents; Recital of Circulator; Constitutional or
Statutory Authority; Error in Petition
Synopsis: Documents circulated by electors of the city of
Cherryvale seeking to bring about a change in the
form of city government and the number of wards in
the city constitute two separate petitions. Each
petition must be able to stand on its own in
meeting the requirements for a sufficient
petition. A recital of the circulator must be
included in each petition. A question regarding
abandonment of the commission form of government is
to be submitted to the qualified electors of the
city at the next city or state general or primary
election following by not less than 60 days the
certification of the petition. A petition
requesting that the question be submitted at an
election held at any other time is a nullity.
Division of the city into wards is essentially an
administrative function, and is not subject to
initiative and referendum. A petition requesting a
change in the number of wards of a city is

therefore of no legal consequence. Cited herein:
K.S.A. 12-184; 12-3013; 14-103; 14-1807; K.S.A.
1991 Supp. 25-3601, as amended by L. 1992, ch.
194, S 2; 25-3602, as amended by L. 1992, ch.
194, § 3.
*
Dear Mr. Depew:
As attorney for the city of Cherryvale, Kansas, you request
our opinion regarding the legality and sufficiency of a
petition seeking to bring to an election a question concerning
abandonment of the present form of government for
Cherryvale. Specifically, you ask the following:
1. Whether the question regarding abandonment of the present
form of government for the city of Cherryvale may be
submitted to the electors on November 3, 1992. If the
question may not be submitted to the electors on November 3,
1992, you ask whether the fact that the petition expressly
requests an election on that date will operate to invalidate
the petition;
2. Whether the petition pertains to more than a single issue
or proposition;
3. Whether a change in the number of wards of a city is a
proper subject of a petition and, if so, whether the petition
must contain the recital set forth in K.S.A. 1991 Supp.
25-3602, as amended by L. 1992, ch. 194, § 3; and
4. Whether the petition must be submitted to the county
attorney prior to its circulation for an opinion of the county
attorney regarding the legality of the form of the question
submitted.
The city of Cherryvale is a city of the second class with the
commission form of government. Certain electors of
Cherryvale are attempting by petition to bring to an
election a question regarding abandonment of the commission
form of government. Based upon information contained in a
September 23, 1992, letter of the Montgomery county clerk, it
appears that 32 documents were filed with the county election
officer. Sixteen of the documents are titled "PETITION TO
BRING AN ELECTION TO ABANDON COMMISSION FORM OF GOVERNMENT."
These pages then provide:

"I, the undersigned, do hereby call for an
election to be held at the November, 1992
general election for the purpose of voting
on a question to abandon the commission
form of government for the city of
Cherryvale, Kansas; that the following
proposition be submitted to the qualified
electors of Cherryvale, Kansas;
"'Shall the city of Cherryvale, Kansas
abandon its organization under Chapter 82
of the Laws of 1909, and the Acts
Amendatory thereto, and become a city
under the general law governing cities of
like population?'
"I have personally signed this petition.
I am a registered elector of the state of
Kansas and of Cherryvale, Montgomery
County, Kansas, and my residence address
is correctly written after my name."
The remaining documents are titled "PETITION" and contain
the following:
"I, the undersigned, being an elector of
the city of Cherryvale, Montgomery
County, Kansas, and a duly registered
voter hereby request that in the event the
present commission form of government is
abandoned by a vote of the electors of the
city of Cherryvale, then the number of
wards in the city of Cherryvale be
reduced from four (4) to two (2) by an
Ordinance adopted in the city commission
as soon as is practicable following the
November, 1992 election.
"I have personally signed this petition
and my residence address is correctly
written after my name."
A recital in the following form accompanies the documents.

AFFIDAVIT OF QUALIFIED ELECTOR
State of Kansas )
) ss:
County of Montgomery )
, being duly sworn, says that he or she is
a qualified elector residing in the city of Cherryvale,
Montgomery County, State of Kansas, duly registered to vote;
that he or she personally witnessed the signing of the
petition by each person whose name appears thereon on the
accompanying pages.
[Signature]
Subscribed and sworn to before me this day of
, 1992.
[Signature]
Notary Public
My Commission Expires:
[Stamp]
Through correspondence dated September 23, 1992, the
Montgomery county clerk certifies receipt on September 9,
1992, of the documents and states that "[t]he petition to
abandon [the] commission form of government for the city of
Cherryvale contained . . . a total of 204 valid signatures"
and "[t]he petition to reduce form [sic] four to two wards in
the city of Cherryvale contained . . . a total of 202 valid
signatures." The documents were apparently never submitted to
the county attorney for a written opinion regarding the
legality of the form of the question. For purposes of clarity
and brevity, the first half of the documents will be referred
to hereinafter as the government petition; the remaining
portions will be referred to as the ward petition.
K.S.A. 1991 Supp 25-3602, as amended by L. 1992, ch. 194, §
3, provides in part that "[e]ach petition shall consist of
one or more documents pertaining to a single issue or
proposition under one distinctive title." Pursuant to 12-184,
the documents are to be filed with the county election
officer, and "[t]he filing shall be made at one time all in

one group." K.S.A. 1991 Supp. 25-3602, as amended. In the
present situation, 32 documents were filed, with half of the
documents titled as a petition to abandon the commission form
of government and half titled only as a petition. Several
persons who signed the government petition also signed the
ward petition. At least one person who signed the government
petition did not sign the ward petition. Based upon these
facts, it is our view that the documents constitute two
separate petitions which happened to be filed at the same
time. The government petition and the ward petition each
pertain to a single issue. Therefore, neither petition
violates the single issue or proposition requirement of K.S.A.
1991 Supp. 25-3602, as amended.
The provisions of K.S.A. 25-3601 et seq. are mandatory,
and are not mere formalities that can be disregarded at will.
Attorney General Opinions No. 90-64; 90-71. Any substantial
departure from the statutory form will render a petition
invalid. Attorney General Opinion No. 90-71. At the same
time, a petition should not be invalidated by unimportant
irregularities or defects if it is in substantial compliance
with statutory requisites. Id. Among the requirements set
forth in subsection (b) of K.S.A. 1991 Supp. 25 - 3602, as
amended, is the requirement that:
"Each petition shall, unless otherwise
specifically required:
"(4) contain the following recital, at
the end of each set of documents carried
by each circulator: 'I am the circulator
of this petition. I have personally
witnessed the signing of the petition by
each person whose name appears thereon. I
am a registered elector of the state of
Kansas and of (here insert name of
political or taxing subdivision), the
political or taxing subdivision in which
the election is sought to be held.
(Signature of circulator)
(Circulator's residence address)

"The recital of the circulator of each
petition shall be verified upon oath or
affirmation before a notarial officer in
the manner prescribed by K.S.A. 1991 Supp.
53-301 et seq. and amendments thereto."
(Emphasis added.)
Pursuant to subsection (a) of K.S.A. 1991 Supp. 25-3602, as
amended, filing of the documents comprising a petition "shall
be made at one time all in one group." Each petition must be
able to stand on its own. As noted above, two separate
petitions were filed with the county election officer but only
one circulator's recital was included with the documents
comprising the government petition and the ward petition. One
of the petitions, therefore, lacks the required circulator's
recital and is clearly invalid. Because we do not have
information regarding the precise manner in which the
petitions were filed, it is impossible for us to determine
whether the circulator's recital is included in the government
petition or the ward petition. However, as each petition
contains other defects affecting its validity, it is not
necessary for us to determine which petition includes the
circulator's recital.
"When under the laws of this state a petition is required or
authorized as a part of the procedure applicable to . . . any
. . . city, . . . the provisions of [K.S.A. 25-3601 et
seq.] shall apply, except as is otherwise specifically
provided in the statute providing for such petition." K.S.A.
1991 Supp. 25-3601, as amended by L. 1992, ch. 194, § 2.
K.S.A. 14-1807 states in part:
"Any city which shall have operated for
more than four (4) years under the
provisions of this act may abandon such
organization thereunder and accept the
provisions of the general law of the state
then applicable to the cities of its
population, by submission, in the manner
provided by K.S.A. 12-184, to a vote of
the qualified electors of the city, of the
following proposition: 'Shall the city of
(name of city) abandon its organization
under chapter 82 of the Laws of 1909, and
the acts amendatory thereto, and become a
city under the general law governing
cities of like population?'"

K.S.A. 12-184 provides that a question regarding the
abandonment of any form of city government may be submitted to
the electors of the city following certification of a petition
signed by not less than 10% of the qualified electors of the
city. The question "shall be submitted to the qualified
electors of the city at the next city or state general or
primary election following by not less than sixty (60) days
. . . the certification of such petition." K.S.A. 12-184
(emphasis added).
It is a well established rule that time and place are of the
substance of an election. Gossard v. Vaught, 10 Kan.
162, 167 (1872); Wycoff v. Board of County Comm'rs, 191
Kan. 658, 665 (1963); 26 Am.Jur.2d Elections § 226
(1966). When the legislature has named a day on which an
election is to be held, or has placed bounds within which it
must be held, a proclamation naming a day other than that
fixed by the statutes is void and the election confers
nothing. Gossard, 10 Kan. at 167. K.S.A. 12-184
establishes the bounds within which an election regarding the
abandonment of a form of city government must be held. Such
an election may not be held during the 60 days immediately
following certification of the petition. It is unclear to us
whether the government petition was certified on September 9
or September 23, 1992. However, November 3, 1992, falls
within 60 days of either date. Because November 3, 1992,
falls within 60 days following certification of the government
petition, a question regarding abandonment of the form of city
government for the city of Cherryvale may not be submitted
to the electors on that date. See Attorney General Opinion
No. 92-133.
There is no requirement that a petition seeking to bring to an
election a question regarding abandonment of the commission
form of government expressly identify the election at which
the question is to be submitted. However, the petitioners
have taken it upon themselves to request that the question be
submitted to the electors at the general election to be held
November 3, 1992. At the time the government petition was
initiated, the request was valid. However, because the
government petition was not filed and certified until
September, 1992, the question may not be submitted to the
electors on November 3, 1992, and identification of that
election essentially becomes an error. Officers having charge
of the machinery for bringing an initiative or referendum
petition to a vote of the electors cannot alter the petition.
See 42 Am.Jur.2d Initiative and Referendum § 26 (1969).
The officials may not modify the government petition so as to

permit the election to be held at a later date. The
government petition requests public officials to undertake an
action for which they have no authority. Therefore, the
government petition becomes a nullity.
If no constitutional or statutory basis exists for the
submission of the question set out in the petition, it should
not be accepted by the county election officer or the city
clerk when it is presented for filing. Attorney General
Opinion No. 84-100. K.S.A. 12-3013 authorizes initiative and
referendum for ordinances of a city. A proposed ordinance and
accompanying petition must meet the requirements set forth in
K.S.A. 12-3013 and 25-3601 et seq. "Such ordinance and
petition shall be filed with the city clerk." K.S.A.
12-3013 (emphasis added). Initiative and referendum are not
applicable to: (1) administrative ordinances; (2) ordinances
relating to a public improvement to be paid wholly or in part
by the levy of special assessments; or (3) ordinances subject
to referendum or election under another statute. Id. The
operation of the initiative and referendum statute is to be
confined with a considerable degree of strictness to measures
which are quite clearly and fully legislative and not
principally executive or administrative. City of Lawrence v.
McArdle, 214 Kan. 862, Syl. ¶ 1 (1974).
Guidelines for determining whether an action is legislative or
administrative in character are set forth in City of Lawrence
v. McArdle, supra. "One crucial test for determining
that an ordinance is administrative or legislative is whether
the ordinance is one making a new law or one executing a law
already in existence." Id. at 862, Syl. S 2. Quoting 5
McQuillin, Municipal Corp., (3rd Ed.) § 16.55, the court
in Rauh v. City of Hutchinson, 223 Kan. 514 (1978) stated
"that if the subject is one of statewide concern in which the
legislature has delegated decision-making power, not to the
local electors, but to the local council or board as the
state's delegated agent for local implementation of state
policy, the action receives an 'administrative'
characterization, hence is outside the scope of the initiative
and referendum" Id. at 519-20. The court further provided
that "[i]f an act carries out an existing policy of a
legislative body, it is administrative whether the policy came
into existence in an enactment of the body itself, in the
organic law creating the body, or in an enactment of a
superior legislative body." Id. at 521-22.
K.S.A. 14-103 obligates a city council of a city of the second
class to divide the city into wards which are as equal in

population as practicable. Cities having a population
exceeding 4,000 but not exceeding 8,000 are to be divided into
four wards. K.S.A. 14-103.
"The city council of any city of the
second class having a population of less
than 3,000 and having three or more wards
may, by ordinance, change and redefine the
boundaries of the wards of such city in
order to reduce the number of wards to not
less than two. . . ." Id.
The state has delegated to the city council of a city of the
second class the authority to determine the manner in which
the wards of the city are established. An ordinance providing
that the city is to be divided into two wards does not
establish a new law; rather, it provides for execution of the
city council's obligation under K.S.A. 14-103. Such an
ordinance is administrative and is not subject to initiative
and referendum as authorized in K.S.A. 12-3013. The ward
petition is therefore of no legal consequence.
In review, documents circulated by electors of the city of
Cherryvale seeking to bring about a change in the form of
city government and the number of wards in the city constitute
two separate petitions. Each petition must be able to stand
on its own in meeting the requirements for a sufficient
petition. A recital of the circulator must be included in
each petition. A question regarding abandonment of the
commission form of government is to be submitted to the
qualified electors of the city at the next city or state
general or primary election following by not less than 60 days
the certification of the petition. A petition requesting that
the question be submitted at an election held at any other
time is a nullity. Division of the city into wards is
essentially an administrative function, and is not subject to
initiative and referendum. A petition requesting a change in
the number of wards of a city is therefore of no legal
consequence. Because it is our view that the government
petition and the ward petition are ineffective, it is not
necessary for us to determine whether such petitions must be
submitted prior to circulation to the county attorney for a

written opinion of the county attorney regarding the form of
the question.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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