Kansas Attorney General Opinion 2017-001

January 3, 2017
ATTORNEY GENERAL OPINION NO. 2017- 1
D.L. Redding
Blue Township Trustee
8940 East U.S. Highway 24
Manhattan, Kansas 66502
Richard Goehring
Blue Township Clerk
4208 Green Valley Road
Manhattan, Kansas 66502
Donald F. Rothwell, Jr.
Blue Township Treasurer
3011 Tumble Weed Terrace
Manhattan, Kansas 66502
Dee McKee, Chairperson
Board of Pottawatomie County Commissioners
207 North 1 st Street
P.O. Box 187
Westmoreland, Kansas 66549
Re: 	Cities 	and 	Municipalities–Definitions—Adoption 	of 	Codes 	by
Reference—City Adoption of Codes by Reference in Ordinance;
County Adoption by Reference in Resolution; Authority of Townships
Townships and Township Officers–General Provisions–Corporate
Status; Powers; Powers and Duties Generally; Authority to Adopt
Building Codes

D.L. Redding
Page 2
Synopsis: 	A township lacks authority to enact local laws or undertake any action
not 	specifically 	authorized 	by 	statute 	or 	the 	state 	constitution.
Lacking such authority, a township may not adopt a uniform code by
reference, nor do the provisions in K.S.A. 12-3301 et seq. for the
adoption of such codes apply to townships. Cited herein: K.S.A. 12-
101; 12-3301; 12-3303; K.S.A. 2016 Supp. 19-101a; 80-101; 80-301;
80-401; 80-501; Kan. Const., Art. 5 § 12.
* 	* 	*
Dear Mr. Redding, Mr. Goehring, Mr. Rothwell, and Ms. McKee:
On behalf of the Board of Directors of Blue Township, and the Board of County
Commissioners of Pottawatomie County, Kansas, each of you has requested an
opinion regarding the authority of townships. Blue Township is located in the
southwest corner of Pottawatomie County, bordering the City of Manhattan and
Riley County. Your question is whether the township board has authority to adopt
uniform building, electrical, and plumbing codes. If such authority exists, you also
inquire about the applicability of the adoption by reference procedure for cities and
counties outlined in K.S.A. 12-3301 et seq. In response to your questions and as
explained below, we conclude that as a quasi-municipal corporation, a township
may exercise only the authority granted to it by the legislature or the state
constitution. Townships are granted limited authority regarding specific local
matters, none of which includes the authority to create or adopt laws. As such,
townships do not possess the authority to adopt building codes.
Township Authority
It is first necessary to examine what authority townships hold in order to answer
your questions. Generally, townships are not considered municipal corporations. 1
“If deemed to be corporations of any kind . . . they are generally quasi-municipal
corporations…as specifically provided for by a statute of the state or a provision of
the state constitution.” 2 The Kansas Legislature chose to empower townships
through statute in K.S.A. 2016 Supp. 80-101:
Each organized township in this state shall be a body politic and
corporate, and in its proper name sue and be sued, and may appoint
all necessary agents and attorneys in that behalf, purchase and hold
real and personal property for the use of the township, sell, convey
and dispose of real and personal property owned by the township,
1 1 McQuillin, Municipal Corporations § 2:57 (2010).
2 Id.

D.L. Redding
Page 3
and may make all contracts that may be necessary and convenient
for the exercise of its corporate powers.
The legislature also outlined the duties of a township trustee in K.S.A. 80-301 by
limiting the trustee to looking after township roads and the taxing mechanisms
necessary for the upkeep of such roads. K.S.A. 80-401 and K.S.A. 80-501
respectively, also outline the narrowly defined duties of the township treasurer and
clerk regarding finances and the maintenance of the records necessary to the
operation of the township. In addition to roads, townships are also given the
authority to raise funds for the operation of parks, libraries, fire protection, water
supply and other useful public services. 3 None of these statutes expand the
township’s power to encompass the adoption of new laws; rather, they are focused
on enforcement or application of laws put in place by other bodies.
By comparison, the grant of authority to enact local laws given to cities and
counties is clear. In K.S.A. 12-101, the home rule of cities, as provided for in Article
12, § 5 of the Kansas Constitution, is codified by empowering “cities to determine
their local affairs and government by ordinance.” K.S.A. 2016 Supp. 19-101a
grants the board of county commissioners the authority to “transact all county
business and perform all powers of local legislation and administration it deems
appropriate.” Townships possess no such broad grants of authority by statute or
the state constitution.
Adoption of Codes by Reference
In your request, you note that K.S.A. 12-3301 et seq. do not specifically authorize
a township to adopt a code by reference. Since no direct authorization for
townships is provided, such authority would have to be inferred from elsewhere.
However, the definitions section provides evidence that the legislature did not
intend 	this 	authority 	to 	extend 	to 	townships. 	K.S.A. 	12-3301(b) 	defines 	a
municipality as “any county or local unit of government which is authorized to enact
local laws under the state law or constitution.” As discussed above, a township is
not authorized to enact local laws and thus, a township does not meet the statutory
definition of a municipality in K.S.A. 12-3301(b). Therefore, the procedures set
forth for the adoption of codes by reference do not apply to townships.
Further, K.S.A. 12-3301 et seq. also specifically provide procedures for cities and
counties in the adoption of codes by reference. In this way, the county has a
mechanism to apply the proper codes to townships. K.S.A. 12-3303, which
provides the procedure that should be followed by counties when making an
adoption by reference, provides that a county may enact codes that apply
differently based on geographic location within the county. For example, any “part
of a code adopted pursuant . . . to this section may be made applicable, by
resolution, either to all unincorporated portions of the county or to any area of the
3 See generally, K.S.A. Chapter 80.

D.L. Redding
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county outside of but within three (3) miles of the nearest point of the corporate
limits of any city.”4 This distinction indicates that the legislature has considered the
need to regulate growth near expanding urban areas without unduly burdening
less populated areas of a county.
A township lacks authority to enact local laws or undertake any action not
specifically authorized by statute or the state constitution. Lacking such authority,
a township may not adopt a uniform code, nor do the provisions in K.S.A. 12-3301
et seq. for the adoption of such codes by reference apply to townships. When it
comes to unincorporated areas of a county, the board of county commissioners is
the authorized body to adopt such laws.
Sincerely,
Derek Schmidt
Kansas Attorney General
Kenneth B. Titus
Assistant Attorney General
DS:AA:KBT:sb
4 Id.