If a Kansas city's population drops, does it automatically get reclassified to a lower city class, and does that affect campaign finance rules?

Plain-English summary

The Kansas Governmental Ethics Commission asked a cluster of questions about how cities are classified by population, because the Kansas Campaign Finance Act, which the Commission enforces, only applies to municipal elections in cities of the first class. The Commission wanted to know whether cities can lose their classification, and therefore lose or gain Campaign Finance Act coverage, if their population shrinks, plus some related historical and procedural questions.

The Attorney General worked through five sub-questions. On population decline, the opinion concluded Kansas's core classification statutes (K.S.A. 15-101, 14-101, and 13-101) only describe upward movement, from third class to second class to first class, as population grows; they contain no mechanism for automatic or voluntary downward reclassification. A separate, narrower statute, K.S.A. 14-901, does let a city of the second class be reclassified back to the third class, but only if population falls to 1,000 or less and a majority of voters approve at a special election called by the mayor, showing the Legislature knew how to write a downward-reclassification procedure when it wanted one. Because no similar statute exists for demoting a first-class city to second class, the opinion concluded there is no lawful path to do so based on population loss alone. On whether any Kansas city could have become a first-class city without ever reaching 15,000 residents, the opinion found none: every one of the 26 current first-class cities, including four now below 15,000, was at some point certified and proclaimed a first-class city based on an official census showing that threshold was met. The opinion also confirmed a city's classification could be tested through mandamus, quo warranto, or a declaratory judgment action, and concluded a 1903 statutory rewrite did not require existing first-class cities to recertify their population to keep their status.

What this means for you

Kansas Governmental Ethics Commission staff and campaign finance compliance officials: the opinion holds that a first-class city with declining population remains a first-class city, and its municipal elections remain subject to the Campaign Finance Act, unless and until the Legislature creates a specific downward-reclassification procedure like the one that already exists for second-to-third-class demotions.

City clerks, county attorneys, and city officials in shrinking cities: the opinion confirms your city's classification (and the state-law obligations tied to it) does not automatically change with a population dip; only a city of the second class dropping to 1,000 or fewer residents has a statutory path to demote itself, and only through a mayor-called special election.

Attorneys considering a legal challenge to a city's classification: the opinion identifies mandamus, quo warranto, and declaratory judgment as the available procedural vehicles for litigating a disputed city classification, citing an 1878 case where a county attorney successfully used mandamus to raise the question.

Common questions

If a first-class city's population drops below 15,000, does it become a second-class city automatically?
No, according to the opinion. Kansas has no statute providing for automatic or voluntary reclassification of a first-class city to second-class status based on population decline.

Does the Kansas Campaign Finance Act apply to elections in every city?
No. The opinion notes the Act, through K.S.A. 25-4143(q), applies only to elections in cities of the first class, which is why a city's classification directly determines whether its municipal elections fall under the Ethics Commission's jurisdiction.

Has any Kansas city become a city of the first class without ever having 15,000 or more residents?
Not according to the opinion's research; all 26 current first-class cities, including the four (Atchison, Coffeyville, Fort Scott, and Parsons) now below 15,000, were proclaimed first-class cities based on an official census showing they had exceeded that threshold at some point in their history.

Background and statutory framework

Kansas organizes municipalities into cities of the third, second, and first class under K.S.A. 15-101, 14-101, and 13-101, respectively. K.S.A. 14-101 provides that a third-class city becomes a second-class city once its population "exceeds" 2,000 (with an opt-out for cities under 5,000), and K.S.A. 13-101 similarly moves a second-class city to first-class status once population reaches "more than" 15,000 (with an opt-out for cities under 25,000). The opinion read the word "continue" in both opt-out provisions as confirming these statutes describe only upward movement.

K.S.A. 14-901 is the one statute providing a downward path, letting a second-class city with population of 1,000 or less hold a special election, called by the mayor, on whether to revert to third-class status, with a majority vote deciding the question. No parallel statute exists for a first-class city to revert to second class. The opinion also traced the history of K.S.A. 13-101 back to an 1868 statute establishing the 15,000-population threshold for first-class cities, and concluded, based on Kansas Supreme Court precedent in Turner v. Board of Commissioners treating state-certified population counts as authoritative, that every existing first-class city had been properly certified at 15,000 or more residents at some point, even the four that have since fallen below that number. On enforcement mechanisms, the opinion pointed to State ex rel. Foster v. Faulkner as an example of a county attorney using mandamus to litigate a city's classification, alongside quo warranto and declaratory judgment actions under K.S.A. 60-1701 as other available avenues.

Citations and references

Statutes:
- K.S.A. 11-201; 12-345; 13-101; 14-101 (incl. (a)); 14-901; 15-101
- K.S.A. 25-4143(q); 60-1701

Cases:
- Turner v. Board of Commissioners, 27 Kan. 639 (1882)
- State ex rel. Foster v. Faulkner, 20 Kan. 541 (1878)
- State v. Strong, 317 Kan. 197, 527 P.3d 548 (2023)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/22868/638723797684970000

Original opinion text

December 18, 2024

ATTORNEY GENERAL OPINION NO. 2024-8

Kaitlyn R. Bull-Stewart, General Counsel
Kansas Governmental Ethics Commission
901 S. Kansas Ave.
Topeka, KS 66612

Re: Cities of the Third Class—Government by Mayor and Council and
General Laws Applicable to Cities of the Third Class—General
Provisions; Cities of Third Class

        Cities of the Second Class—Government by Mayor and Council and
        General Laws Applicable to Cities of the Second Class—General
        Provisions; Change in Classification of City from City of Third Class to
        City of Second Class

        Cities of the First Class—Government by Mayor and Council and
        General Laws—General Provisions; Change in Classification of City
        from City of Second Class to City of First Class

Synopsis: K.S.A. 15-101, K.S.A. 14-101, and K.S.A. 13-101 do not provide for
reclassifying a city based on a decrease in population. But K.S.A. 14-
901 does allow for a city of the second class to be reclassified as a city
of the third class if the population falls to 1,000 or less and a majority
of voters approve of the reclassification. There is no similar mechanism
for reclassifying a city of the first class to a city of the second class.

        We are unaware of any circumstances under which a city might have
        become a city of the first class without having attained a population of
        15,000 at some point in its history.

        In appropriate circumstances, an action in mandamus or quo warranto
        could be brought in the name of the State to challenge a city's
        classification. In addition, the question of a city's classification could be
        raised in a declaratory judgment action by a party with standing or in
        the context of another dispute.

        The enactment of K.S.A. 13-101 in 1903 did not require existing cities
        of the first class to recertify that they had a population of over 15,000
        and obtain a new gubernatorial proclamation in order to maintain
        their status as cities of the first class.

        Cited herein: K.S.A. 11-201; 12-345; 13-101; 14-101; 14-901; 15-101;
        25-4143; 60-1701.


                              *             *              *

Dear Ms. Bull-Stewart:

As General Counsel for the Kansas Governmental Ethics Commission, you ask
several questions about the classification of cities based on population. Your
questions arise because the Kansas Campaign Finance Act, which the Commission
is tasked with enforcing, only applies to certain elections. Specifically, for municipal
elections, only elections in cities of the first class are subject to the Act and the
Commission's jurisdiction.1

                                  Statutory Background

Kansas law organizes cities into cities of the third, second, and first classes. K.S.A.
15-101, the statute governing cities of the third class, provides:

      All municipal corporations of the territory or state of Kansas, heretofore
      organized as cities, towns, or villages, containing not more than two
      thousand inhabitants (and not heretofore organized as cities of the
      second class), including cities of the third class organized in accordance
      with the provisions of the act of which this is amendatory, and including
      also all unincorporated towns (without regard to their population) which

1 See K.S.A. 25-4143(q).

  may now or hereafter be constituted a county seat of any county, shall
  be cities of the third class . . . .

K.S.A. 14-101(a), the statute governing cities of the second class, provides:

  All cities now organized and acting as cities of the second class, by virtue
  of the authority of former acts, and all cities hereafter attaining a
  population of more than 2,000 and less than 15,000, shall be governed
  by the provisions of this act. Except as provided by this section,
  whenever the population of a city exceeds 2,000, the governing body of
  such city shall certify such fact to the governor. The governor shall
  declare, by public proclamation, such city subject to the provisions of
  this act. If the governing body of any city which has attained a
  population of more than 2,000 and less than 5,000 shall determine by
  resolution duly adopted that it would be more advantageous for such
  city to continue to operate as a city of the third class, such governing
  body shall not be required to so certify the population of such city to the
  governor and the laws relating to the cities of the third class shall
  continue to be applicable to such city.

And K.S.A. 13-101, the statute governing cities of the first class, provides:

  Whenever it shall have been duly ascertained by any census of
  enumeration taken under any law of the United States or of the state of
  Kansas or by any city that any city has attained a population of more
  than fifteen thousand (15,000), such fact shall thereupon, by the
  governing body of such city, be certified to the governor of the state, who
  shall thereupon by public proclamation declare such city to be a city of
  the first class. If the governing body of any city which has attained a
  population of more than fifteen thousand (15,000) and less than twenty-
  five thousand (25,000) shall determine by resolution duly adopted that
  it would be more advantageous for such city to continue to operate as a
  city of the second class, such governing body shall not be required to so
  certify the population of such city to the governor and the laws relating
  to cities of the second class shall continue to be applicable to such city.

                           Questions One and Two:
                Reclassification Based on Population Decline

These statutes clearly provide a procedure by which a city of the third class may be
reclassified as a city of the second class and a city of the second class reclassified as
a city of the first class based on an increase in population. Your first two questions
ask whether a city either "may" or "must" be reclassified under these statutes based
on a population decline. For instance, if the population of a city of the first class

falls below 15,000, do these statutes provide for its reclassification as a city of the
second class? We believe the answer is no, for two reasons.

First, the text of K.S.A. 14-101 and K.S.A. 13-101 provides specific procedures by
which a city of the third class may be reclassified as a city of the second class and by
which a city of the second class may be reclassified as a city of the first class, but
these statutes provide no similar procedures for reclassification in the event of a
population decline. Specifically, K.S.A. 14-101 states that whenever the population
of a city of the third class "exceeds" 2,000, the governing body shall certify the fact
to the Governor, who shall then proclaim the city to be a city of the second class,
except that if the city has a population of less than 5,000, it may "continue to
operate as a city of the third class." Likewise, K.S.A. 13-101 states that when a city
of the second class attains a population of "more than" 15,000, the governing body
shall certify the fact to the Governor, who shall proclaim the city to be a city of the
first class, except that if the city has a population of less than 25,000, it may
"continue to operate as a city of the second class." The use of the word "continue" in
both instances implies upward movement, from third to second class and from
second to first class. The fact that the Legislature provided specific procedures for
reclassification due to population gain but not population loss indicates that these
statutes do not allow for such downward reclassification.

Second, a separate statute, K.S.A. 14-901, does establish a procedure by which a
city of the second class may be reclassified as a city of the third class based on
population decline. It provides:

   Whenever any city of the second class organized under the laws of the
   state of Kansas has been reduced in population to one thousand or less,
   as shown by the last returns of the assessor taking the enumeration of
   said city,2 the mayor of such city of the second class or the president of
   the council, if there is no acting mayor, may by proclamation call an
   election within such city for the purpose of determining whether said
   city shall be set back into a city of the third class.
   ....

   A majority of the votes cast at such election shall decide the proposition
   and if a majority of the votes cast are for the affirmative, . . . such city
   shall be a city of the third class.

2 The reference to the returns of the assessor appears to have been superseded by K.S.A. 11-201,

which now provides that population is to be determined by the "most recent population figures
available from the United States bureau of the census as certified to the secretary of state by the
division of the budget on July 1 of each year."

Statutes relating to the same matter must be read in pari materia to bring the
provisions into workable harmony if possible.3 Construing K.S.A. 15-101 as allowing
or requiring a city of the second class to be reclassified as a city of the third class
whenever its population falls below 2,000 would be inconsistent with K.S.A. 14-901,
which allows for reclassification only if the population falls to 1,000 or less, and
even then only if the mayor calls for an election and a majority of voters agree.

There is no statute similar to K.S.A. 14-901 that provides a method by which a city
of the first class may be reclassified as a city of the second class. The fact that the
Legislature specifically provided for the reclassification of cities of the second class
as cities of the third class but did not adopt a similar statute for cities of the first
class indicates that Kansas statutes do not allow for the reclassification of cities of
the first class based on a population decline.

                                  Question Three:
                 Classification as a City of the First Class without
                     Having Attained a Population of 15,000

Your next question is under what circumstances, if any, would a city that has never
been certified by a census to have a population greater than 15,000 be classified as a
city of the first class. We are unaware of any circumstances under which that might
be the case. The first statute referencing cities of the first class was enacted in
1868,4 and the population threshold for cities of the first class was 15,000 under
that statute, as it continues to be today.

We note, however, that the population threshold need not have been established
based on the decennial U.S. Census. K.S.A. 13-101 refers to a "census of
enumeration taken under any law of the United States or of the state of Kansas or

3 State v. Strong, 317 Kan. 197, 203, 527 P.3d 548 (2023); State v. Newman-Caddell, 317 Kan. 251,
259, 527 P.3d 911 (2023).
4 Gen. St. 1868, ch. 18, §§ 1-2. Cities of the second class were addressed in chapter 19. The previous

year, the Legislature had enacted a statute classifying cities containing more than 1,000 and less
than 15,000 inhabitants as cities of the second class, thus perhaps implicitly recognizing cities of
15,000 inhabitants or more as cities of the first class without using that term. L. 1868, ch. 68. The
Legislature enacted a statute providing for the organization of cities of the third class in 1869. L.
1869, ch. 26. And in 1871, the Legislature repealed previous statutes that provided for the
incorporation of towns and villages, leaving cities of the third class as the smallest form of municipal
corporation. L. 1871, ch. 60.

by any city."5 This language dates to 1903,6 but earlier Kansas Supreme Court
precedent held that censuses taken under state law provided authoritative
population figures for purposes of state statutes. In Turner v. Board of
Commissioners,7 a dispute arose over the population of Neosho County because
county superintendents were entitled to an annual salary of $600 in counties of at
least 10,000 and less than 15,000 inhabitants but an annual salary of $800 in
counties of at least 15,000 and less than 20,000 inhabitants. A census taken by the
township trustees on March 1, 1880, showed Neosho County had a population of
14,095, while the U.S. census taken on June 1, 1880, recorded a population of
15,125. The Neosho County Superintendent sued, seeking the higher salary, but the
Kansas Supreme Court rejected his claim. In an opinion by Justice Brewer, the
Court held that when a state statute refers "to a question of population, in the
absence of language importing other reference, the proper understanding is that it
refers to population as determined and evidenced by state proceedings" and thus
"the population as determined by the state census must control as to the salary to
be paid under state laws."8

While the historical population of cities of the first class is a question of fact, there
are currently 26 cities of the first class in Kansas according to the League of Kansas
Municipalities.9 Only four of those cities currently have a population less than
15,000: Atchison, Coffeyville, Fort Scott, and Parsons.10 Of those four, all but Fort
Scott at one time had a population of over 15,000 on at least one decennial U.S.
Census.11 And all four were proclaimed as cities of the first class by a Kansas
Governor based on their having attained a population of over 15,000, with Fort
Scott being declared a city of the first class by a proclamation of Governor Martin on
May 29, 1888, stating "it has been duly ascertained by a census taken under the
laws of the State, that said city has attained a population of over fifteen thousand
inhabitants."12 In short, it appears that every city of the first class in Kansas has

5 Emphasis added. As discussed in Sickly v. Board of Commissioners, 83 Kan. 740, 112 P. 621 (1911),
early Kansas statutes provided for both annual and decennial enumerations. See also L. 1873, ch. 75,
§ 1 ("[T]he several township and city assessors . . . shall annually, on or before the 10th day of June,
make an enumeration of the persons residing in their respective townships and cities . . . ."). Since
1978, however, K.S.A. 11-201 has provided that "the most recent population figures available from
the United States bureau of the census . . . shall be used for all purposes in the application of
statutes of this state."
6 See L. 1903, ch. 122, § 1.
7 27 Kan. 639 (1882).
8 Id. at 641-42. K.S.A. 11-201 abrogates this holding today.
9 https://www.lkm.org/page/DirectorySearch. This includes the Unified Government of Wyandotte

County and Kansas City, which is both a county and a city of the first class. See K.S.A. 12-345.
10 See Kansas Division of the Budget, Kansas Certified Population (July 1, 2024), available at

https://perma.cc/A28F-5SFP.
11 See https://perma.cc/7ZPE-DT9X. Atchison had a population over 15,000 in 1900 and 1910,

Coffeyville from 1930 through 1980, and Parsons in 1920.
12 The Fort Scott proclamation is available on the Kansas Historical Society's website at

https://perma.cc/52GS-MER4. The same website also contains gubernatorial proclamations for

been determined to have had a population of more than 15,000 at some point in its
history.

                                Question Four:
                Mechanisms to Ensure Accurate City Classification

Your fourth question is what mechanism exists to ensure that a city is in
compliance with these statutes. This question may be largely moot given our
answers above. But in appropriate circumstances, we believe that an action in
mandamus or quo warranto could be brought in the name of the State to challenge a
city's classification. For instance, in State ex rel. Foster v. Faulkner,13 the Saline
County Attorney brought an original action in mandamus seeking to compel the
Salina City Council to reorganize Salina from a city of the third class into a city of
the second class based on a census showing a population of over 2,000 inhabitants.
The Kansas Supreme Court held that the county attorney could bring a mandamus
action but entered judgment for the defendants because the census in question was
not officially authorized.14

Apart from mandamus and quo warranto, a party with sufficient standing could
presumably bring a declaratory judgment action under K.S.A. 60-1701 et seq. to
determine the correct classification of a city. A question about the classification of a
city could also potentially arise in the context of another dispute, similar to the
Turner case discussed above where a lawsuit over a county superintendent's salary
turned on the population of the county.

                                  Question Five:
                 Continued Recognition of Cities of the First Class
                       after the Enactment of K.S.A. 13-101

Finally, you ask under what circumstances a city that was recognized as a city of
the first class at some point prior to the enactment of K.S.A. 13-101 in 1903 would
be allowed to continue as a city of the first class after that date without a new
census showing a population over 15,000.15 In our opinion, the 1903 legislation had
no effect on the classification of existing cities of the first class. That statute
provided:

Atchison in 1881 (https://perma.cc/8CHW-YYN5), Coffeyville in 1906 (https://perma.cc/4CSP-SVUV),
and Parsons in 1906 (https://perma.cc/FY52-NSUZ).
13 20 Kan. 541 (1878).
14 Id. at 546-48.
15 Although the history of K.S.A. 13-101 traces back to L. 1903, ch. 122, § 1, the statute number does

not appear to have been assigned until 1923, when the Revised Statutes of Kansas (Annotated) were
published.

    Whenever it shall have been duly ascertained by any census or
    enumeration taken under any law of the United States or of the state of
    Kansas or by any city that any city has attained a population of over
    fifteen thousand inhabitants, such fact shall thereupon, by the mayor
    and council of such city, be certified to the governor of the state, who
    shall thereupon by public proclamation declare such city to be, and the
    same shall thereupon become, a city of the first class.16

By its plain language, this law establishes a procedure by which new cities of the
first class would be recognized in the future. Nothing in its text suggests that
existing cities of the first class are to be stripped of their status and must
reestablish themselves as cities of the first class. You note that the bill repealed
prior statutes governing cities of the first class, but the Legislature commonly
repeals earlier versions of statutes when it amends or replaces them.17 We do not
understand the repeal of prior statutes, absent some additional textual provision, as
terminating the classification of existing cities of the first class. This is particularly
true given that the 15,000 population threshold dates back to the original statutes
establishing cities of the first class in 1868.18

                                             Sincerely,

                                             /s/ Kris W. Kobach

                                             Kris W. Kobach
                                             Attorney General

                                             /s/ Dwight R. Carswell

                                             Dwight R. Carswell
                                             Deputy Solicitor General

16 L. 1903, ch. 122, § 1.
17 For instance, K.S.A. 13-101 was amended in 1953, and the bill repealed the prior statute. See L.

1953, ch. 77, § 2. We do not believe this required all existing cities of the first class at the time to
reestablish themselves as cities of the first class.
18 See L. 1868, ch. 18, § 1 ("All cities of more than fifteen thousand inhabitants shall be governed by

the provisions of this act."); id. at § 2 ("Whenever any city shall hereafter have attained a population
of over fifteen thousand inhabitants, and such fact shall have been duly ascertained and certified to
the governor, by the mayor and council of such city, [he] shall declare, by public proclamation, such
city subject to the provisions of this act." (brackets in original)). In fact, the 1881 statute uses
identical language as the 1903 statute. See L. 1881, ch. 37, § 1 ("Whenever it shall have been duly
ascertained, by any census or enumeration taken under any law of the United States or of the state
of Kansas, or by any city, that any city has attained a population of over fifteen thousand
inhabitants, such fact shall thereupon, by the mayor and council of such city, be certified to the
governor of the state, who shall thereupon, by public proclamation, declare such city to be, and the
same shall thereupon become, a city of the first class.").