IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 85,953
IN THE MATTER OF THE APPEAL OF THE CITY OF
WICHITA FROM AN ORDER OF THE
DIVISION OF TAXATION ON AN ASSESSMENT OF SALES TAX,
PENALTY, and INTEREST.
SYLLABUS BY THE COURT
1. The Equal Protection Cause of the Fourteenth Amendment to the United States Constitution provides that states cannot deny to any person within its jurisdiction the equal protection of the laws. The Kansas Constitution provides virtually identical protection. If similarly situated taxpayers are granted more favorable treatment, there can be an equal protection violation even if the taxpayer is taxed according to the law. However, for there to be an equal protection violation the disparate treatment must be intentional and systematic. The Equal Protection Cause tolerates occasional errors of state law or mistakes in judgment.
2. The purpose of the Equal Protection Clause is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. And it must be regarded as settled that intentional systematic discriminatory enforcement of tax laws contravenes the constitutional rights of equal protection. However, it is also clear that mere errors of judgment by officials will not support a claim of discrimination. There must be something more--something which in effect amounts to an intentional violation of the essential principle of practical uniformity.
3. Tax exemption statutes are to be construed in favor of imposing the tax and against allowing an exemption. However, the taxing statutes will be construed favorably to the taxpayer where there is a reasonable doubt as to the meaning of the statutes.
4. An appellate court's scope of review of a Kansas Board of Tax Appeals' decision, set forth in K.S.A. 77-601 et seq., is stated and applied.
5. The fundamental rule for the interpretation of a statute to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained; when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Further, there is a presumption that the legislature does not intend to enact useless or meaningless legislation.
6. Rules of statutory interpretation regarding tax exemptions which require an exclusive use are stated and applied.
7. Usually, the legal interpretation of a statute by an administrative agency that is charged by the legislature with enforcement of the statute is entitled to great judicial deference, although when reviewing questions of law the court may substitute its judgment for that of the agency.
Review of the judgment of the Court of Appeals in an unpublished opinion filed November 2, 2001. Appeal from the Board of Tax Appeals. Judgment of the Court of Appeals is affirmed in part and reversed in part. Judgment of the Board of Tax Appeals is affirmed. Opinion filed December 6, 2002.
Richard D. Greene, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Gary Rebenstorf and Brian K. McLeod, of Wichita, were with him on the briefs for appellant.
Richard L. Cram, of the Kansas Department of Revenue, argued the cause and was on the briefs for appellee.
The opinion of the court was delivered by
DAVIS, J.: The controversy between the City of Wichita (City) and the Kansas Department of Revenue (Department) involving a retailers sales tax assessment for electricity consumed by the City in its delivery of water comes before this court upon our grant of the Department's petition for review. The Court of Appeals reversed the Board of Tax Appeals' (BOTA) decision that additional retailers sales tax upon the electricity was due on the basis that to do otherwise denied the City equal protection under the United States Constitution. We review that decision, which, if erroneous, requires us to determine the applicable law as well as the intent of the legislature with regard to the retailers sales tax.
The City is a political subdivision owning and operating a water treatment plant. The treatment plant provides water for the dual purpose of fire protection and furnishing water to others. The Department conducted an audit of the City's electricity purchases used to power the water treatment plant for the period of June 1, 1992, through May 31, 1995. Although requested to do so, the Department declined to segregate the electricity purchases according to the percentage of the water used for governmental purposes and the percentage of the water sold to consumers.
The electricity purchased during the audit period was used to pressurize water at the Hess Pump Station which is part of the Sim Park Water Works Complex located approximately 1,000 feet from the water treatment plant. The City's water system is an integrated system; the treatment plant and water distribution system are controlled from a central location. The Hess Pump Station is operated from a control room in the water treatment plant. The plant operator must take into account the City's demand for water, the amount of chemicals needed to treat the water, and the amount of pressure necessary to deliver the water, in addition to all other needs in order to deliver potable water to others.
City water is pressurized at the Hess Pump Station and pushed into the City's distribution system. The Environmental Protection Agency (EPA) and the Kansas Department of Health and Environment (KDHE) regulations require that the water be treated and pressurized at a minimum of 20 PSI (pounds per square inch) throughout the distribution process in order to be considered potable. In addition to pushing water through the distribution system and meeting KDHE regulations, pressurization also ensures proper volume for fire protection and prevents backflow contamination in the water distribution system. Pressurization is important to water quality because backflow presents a serious health hazard. The water's potability is first measured at the discharge side of the Hess Pump Station. This is just past the pump station, after pressure has been added and electricity has been consumed.
Max Smith, a Department auditor, was originally appointed to conduct the City's audit in September 1994. However, before he could complete the audit, Smith unexpectedly retired because of medical problems. In February 1995, the audit was assigned to Laurie Blaha, another Department auditor. Blaha began the audit in July 1995 and completed the audit within 6 months, which according to Robert Lewis, the audit manager for the Department, is typical for audits as involved as the City's. According to Blaha, other assignments kept her from beginning the City's audit until July 1995.
Blaha testified that she worked diligently on completing the audit. During the hearing before the administrative law judge (ALJ), the City's counsel admitted that "the six months from late July to early February, '96 is not an unreasonable time for this audit given its complexity."
The Department's audit for the period beginning June 1, 1992, and ending May 31, 1995, determined that the City owed $337,623 plus interest of $110,031 as additional sales tax for electricity used to pressurize and treat the water, which was assessed at a rate of 4.9%. The City appealed and on February 11, 1999, the ALJ issued a final determination upholding the tax assessment rate of 4.9% together with interest.
The City appealed the Department's tax assessment to BOTA on February 22, 1999. The City sent a letter to BOTA on March 1, 1999, asking BOTA to issue a quick decision so the City could join the appeal in In re Appeal of Water Dist. No. 1 of Johnson County, 26 Kan. App. 2d 371, 988 P.2d 267 (1999), rev. denied 268 Kan. 886 (1999), which was then pending before the Court of Appeals. Both cases involved similar issues.
While the City's case was pending before BOTA, the Court of Appeals decided In re Appeal of Water Dist. No. 1 of Johnson County on August 13, 1999. The Court of Appeals held that electricity purchased to pressurize water by Johnson County was exempt from sales tax. The court did not consider whether the Johnson County water district's electricity purchases should have been taxed at the 2.5% rate, K.S.A. 1992 Supp. 79-3603(u), but instead decided the case under the "consumed in production" exception of K.S.A. 79-3606(n). See 26 Kan. App. 2d at 373-74, 376-77.
Both parties notified BOTA of the decision in Water Dist. No. 1. In their respective letters, both parties changed their position before BOTA. The City changed its initial position that the 2.5% tax rate applied to its purchase of electricity and argued before BOTA and this court that the City is exempt from any tax. The Department also changed its initial position that a 4.9% rate of tax, K.S.A. 1992 Supp. 79-3603(c), applied, asked BOTA not to jump to conclusions before the petition for review had been determined in Water Dist. No. 1., and argued before BOTA and this court that the 2.5% rate applies. This court declined to grant the petition for review in Water Dist. No. 1.
BOTA concluded the 2.5% rate of taxation under the provisions of K.S.A. 1992 Supp. 79-3603(u) applied, found that the City's electricity purchases for the period of time in question did not qualify for partial exemption under K.S.A. 1992 Supp. 79-3606(b)(2) and, unlike the court in Water Dist. No. 1, concluded that the tax exemption in K.S.A. 1992 Supp. 79-3606(n) did not apply.
COURT OF APPEALS' DECISION
The City appealed BOTA's order to the Court of Appeals on September 28, 2000. The Court of Appeals in an unpublished opinion, In re Appeal of the City of Wichita, No. 85,953, filed November 2, 2001, noted that the audit of the City of Wichita covered "roughly the same time period and essentially the same issues" as those in Water Dist. No. 1, in which the court concluded that Johnson County owed no tax because of an exemption under K.S.A. 79-3606(n). The City of Wichita claimed that Water Dist. No. 1 controlled. However, the Court of Appeals noted in hindsight that Water Dist. No. 1 "was probably wrongly decided." At the same time, the Court of Appeals reversed BOTA's decision on the basis of equal protection; that is, granting tax exemption to Johnson County and taxing the City of Wichita treats similarly situated taxpayers differently, resulting in a denial of equal protection to the City of Wichita.
The Court of Appeals commented on the extreme difficulty involved in attempting to resolve this case on the merits of the tax exemption claimed: "During a single legislative session, applicable statutes were amended three times. The parties in Water Dist. No. 1 did not argue this point and we did not decide it." The court set forth each of the 1992 amendments to K.S.A. 79-3602, concluding that it "need not decide which 1992 amendment was effective at various times, as it is not central to our ultimate holding in the present case. "
The court stated that "even when a taxpayer is taxed according to the law, that taxpayer may still suffer actionable discrimination if similarly situated taxpayers are granted more favorable treatment." While the court determined that the City did not prove it suffered any intentional discrimination, the court explained that the City had been treated significantly different from the taxpayer in Water Dist. No. 1 and that justice required that the City be treated the same as the taxpayer in Water Dist. No. 1. Accordingly, the court reversed BOTA's decision and remanded the case with directions to "grant Taxpayer the same treatment ordered for the taxpayer in Water Dist. No. 1. "
The Fourteenth Amendment to the United States Constitution provides that states cannot "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend XIV, § 1. The Kansas Constitution provides virtually identical protection. Kan. Const. art. 11, § 1; see Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 609, 24 P.3d 113 (2001). If similarly situated taxpayers receive disparate treatment, the one receiving the less favorable treatment may have been denied equal protection of the law even if the taxpayer receiving the less favorable tax is taxed according to the law. 271 Kan. at 609. However, the taxpayer seeking to establish a violation of the Equal Protection Clause must demonstrate that his or her treatment is the result of a "deliberately adopted system" which results in intentional systematic unequal treatment. 271 Kan. at 612.
While the Court of Appeals in the present case found there was no intentional discriminatory treatment, the court, citing Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336, 102 L. Ed. 2d 688, 109 S. Ct. 633 (1989), and Colorado Interstate Gas Co., 271 Kan. 596, found that the "taxpayer may still suffer actionable discrimination if similarly situated taxpayers are granted more favorable treatment." The court further relied on K.S.A. 60-2101 and K.S.A. 60-2105. K.S.A. 60-2101 provides that the Court of Appeals "shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse." K.S.A. 60-2105 provides that the Court of Appeals "shall render such final judgment as it deems that justice requires."
The Department points out that in Allegheny, equal protection grounds were warranted because there was a plethora of evidence of systematic and intentional discriminatory treatment. In Allegheny, the taxpayer was taxed at approximately 35 times the rate applied to owners of comparable properties. The difference in treatment continued over a period of 6 years and after the property was sold. The Supreme Court noted that this approach systematically produced dramatic differences in valuation between petitioners' recently transferred property and otherwise comparable surrounding land. Further, the court in Allegheny noted that the Equal Protection Clause "tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes." 488 U.S. 341-43. For authority, the Court cited Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 353, 62 L. Ed. 1154, 38 S. Ct. 495 (1918).
The United States Supreme Court in Sunday Lake Iron Co. rejected the taxpayers argument that the State's mistaken property overvaluation amounted to an equal protection violation. The Court held the following:
"The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. And it must be regarded as settled that intentional systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property. [Citation omitted.] It is also clear that mere errors of judgment by officials will not support a claim of discrimination. There must be something more--something which in effect amounts to an intentional violation of the essential principle of practical uniformity. The good faith of such officers and the validity of their actions are presumed; when assailed, the burden of proof is upon the complaining party. [Citations omitted.]" 247 U.S. at 352-53.
There is an important distinction between the situationNovember 21, 2002 in Sunday Lake Iron Co. and the present case. The taxpayer in Sunday Lake convinced the Court that the tax was illegal, i.e., contrary to state law. The record in Sunday Lake disclosed facts "which render it more than probable that plaintiff in error's mines were assessed for the year 1911 (but not before or afterwards) relatively higher than other lands within the county although the statute enjoined the same rule for all." 247 U.S. at 353. However, the Court declined to provide relief. In the present case, there is no allegation that the statute under which the City was taxed is illegal. The mistake in this case, acknowledged by the Court of Appeals, was made in Water Dist. No. 1. There was no showing that the tax in this case was the result of intentional action. Nor was there any showing that the tax imposed in this case was the result of a deliberately adopted system which results in intentional systematic unequal treatment of the City of Wichita. As noted, the Constitution "tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes." Allegheny, 488 U.S. at 343.
Contrary to the Court of Appeals' decision, the City failed to meet its burden to establish a violation of the Equal Protection Clause. The appropriate remedy assuming a mistake in Water Dist. No. 1, was to not give a similar windfall to all similarly situated parties. The error was at most a mistake in judgment or mistake in the application of the law, not an intentionally and deliberately adopted system which results in systematic unequal treatment of the City.
We conclude that the City's equal protection argument fails. The City has not demonstrated that the treatment it received under the tax laws of this state was the result of intentional systematic unequal treatment. The record fails to support a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We, therefore, reverse the decision of the Court of Appeals.
BOTA DECISION
BOTA concluded that the City's purchases of electricity should be assessed at the tax rate of 2.5%, rather than 4.9%, based upon K.S.A. 1992 Supp. 79-3603(u). In our review of the BOTA decision and the law, we conclude that the 1992 legislature removed electricity from the definition of "tangible personal property which is consumed" in K.S.A. 1992 Supp. 79-3602(m), which made exemption under K.S.A. 1992 Supp. 79-3606(n) inapplicable. At the same time, the 1992 legislature imposed a 2.5% sales tax on the sales of electricity which was "essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in . . . the production, manufacture . . . of tangible personal property." K.S.A. 1992 Supp. 79-3603(u). For this reason, and based upon our analysis of the question, we affirm BOTA's determination that a 2.5% sales tax is owed by the City for the period of time in question.
Standard of Review
BOTA is considered the paramount taxing authority in Kansas. Wirt v. Esrey, 233 Kan. 300, 314, 662 P.2d 1238 (1983). However, if BOTA's interpretation of law is erroneous as a matter of law, appellate courts will take corrective steps. In re Tax Appeal of Intercard, Inc., 270 Kan. 346, 349, 14 P.3d 1111 (2000).
"[T]ax exemption statutes, such as K.S.A. 79-3606, are to be construed in favor of imposing the tax and against allowing an exemption. [Citation omitted.] On the other hand, tax statutes will be construed favorably to the taxpayer where there is a reasonable doubt as to [their] meaning. [Citation omitted.]" Water Dist. No. 1, 26 Kan. App. 2d at 372-73.
K.S.A. 77-601 et seq. sets forth our scope of review. See K.S.A. 2001 Supp. 74-2426(c). K.S.A. 77-621(a) provides that unless "this act or another statue provides otherwise: (1) The burden of proving the invalidity of agency action is on the party asserting invalidity." In this case, BOTA ordered the City to pay a sales tax. Thus, the City bears the burden of proving BOTA's decision erroneous. K.S.A. 77-621(c) further specifies that this court may grant relief in the following cases:
"(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
"(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
"(3) the agency has not decided an issue requiring resolution;
"(4) the agency has erroneously interpreted or applied the law;
"(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
"(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
"(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
"(8) the agency action is otherwise unreasonable, arbitrary or capricious."
See In re Tax Appeal of Panhandle Eastern Pipeline Co., 272 Kan. ___ Syl. ¶ 1, 39 P.3d 21 (2002). Interpretation of statutes is a question of law; thus, to the extent statutory interpretation is required in this case, our review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Analysis of relevant amendments
K.S.A. 79-3602 (Ensley 1989) contained definitions of words and terms used throughout the sales tax provisions. That statute was amended three times in 1992. Each of the following three session laws contained either italicized or strike-through language in only one particular subsection. In other words, none of them viewed in isolation, purported to amend by italicized or strike-through type more than one subsection. Further, each of the following session laws explicitly amended K.S.A. 79-3602, not K.S.A. 79-3602 as amended by either of the other two session laws enacted in 1992. Our discussion considers the session laws in the order they became effective. We also note that the order of enactment of the amendments is the reverse of the order of their effectiveness.
1. The (m) Session Law: L. 1992, ch. 280, § 58 (approved May 20, 1992, effective June 1, 1992, and codified at K.S.A. 1992 Supp. 79-3602[m]).
"On June 1, 1992, K.S.A. 79-3602 is hereby amended to read as follows: 79-3602.
. . . .
"(m) 'Property which is consumed' means tangible personal property which is essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in (1) the production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property, (2) the providing of services or (3) the irrigation of crops, for sale in the regular course of business, and which is not reusable for such purpose. The following items of tangible personal property are hereby declared to be 'consumed' but the listing of such property shall not be deemed to be exclusive nor shall such listing be construed to be a restriction upon or an indication of, the type or types of property to be included within the definition of 'property which is consumed' as herein set forth:
"(A) Insecticides, herbicides, germicides, pesticides, fungicides, antibiotics, biologicals, pharmaceuticals, vitamins and chemicals for use in commercial or agricultural production of fruit, vegetables, feeds, seeds, animals or animal products whether fed, injected, applied or otherwise used; and
"(B) electricity, gas and water." L. 1992, ch. 280, § 58.
The (m) session law removed subsection (B). With the words "electricity, gas and water" removed from the definition of "tangible personal property which is consumed" in 79-3602, taxation of these items was no longer explicitly exempted by K.S.A. 79-3606(n) (Ensley 1989), which exempted sales of tangible personal property consumed in the production of tangible personal property:
"(n) all sales of tangible personal property which is consumed in the production [or] manufacture, . . . of tangible personal property . . . may obtain from the director of taxation and furnish to the supplier an exemption certificate number for tangible personal property for consumption in such production, manufacture, processing, mining, drilling, refining, compounding, irrigation and in providing such services." (Emphasis added.) K.S.A. 1991 Supp. 79-3606(n).
2. The (j) Session Law: L. 1992, ch. 198, § 7 (approved April 24, 1992, effective July 1, 1992, and codified at K.S.A. 1992 Supp. 79-3602b[j]).
The (j) session law modified K.S.A. 79-3602(j) (Ensley 1989), which defined "isolated or occasional sale." Subsection (j) is unrelated to the present case. However, as the Court of Appeals noted, the (j) session law retained K.S.A. 79-3602(m)(B) (Ensley 1989) as it stood before the (m) session law, L. 1992, ch. 280, §58, became effective. It is important to note, the language in the (j) session law retaining K.S.A. 79-3602(m)(B) (Ensley 1989) language is not in italics, but is in regular type. Of further interest, the modifications to subsection (l), as explained below, are also not reflected in the (j) session law.
3. The (l) Session Law: L. 1992, ch. 102, § 7 (approved April 16, 1992, effective July 1, 1992, and codified at K.S.A. 1992 Supp. 79-3602a[l]).
The (l) session law modified K.S.A. 79-3602(l) (Ensley 1989), which defined "ingredient or component part." This modification is not relevant to the present case. However, as the Court of Appeals again noted, this session law retained subsection (m)(B) as it stood before the (m) session law, L. 1992, ch. 280, § 58--again without italicized type. Of interest, the modification created by the (j) session law, described above, was not reflected in this session law, although the amendments to subsection (j) and (l) became effective on the same day.
The legislature's reconstruction of K.S.A. 1992 Supp. 79-3602, K.S.A. 1992 Supp. 79-3602a, and K.S.A. 1992 Supp. 79-3602b.
The Revisor of Statutes was faced with the same confusion at issue in this case; hence, the creation of two new sections, K.S.A. 1992 Supp. 79-3602a and 79-3602b, to accommodate the (j) and (l) session laws. Notably, none of the three session laws explicitly created new sections in the Kansas Statutes Annotated--each purported to amend 79-3602. The legislature summarily repealed what the Revisor of Statutes had codified at 79-3602a and 79-3602b with L. 1994, ch. 2, § 5, which became effective on February 17, 1994. On the same day, L. 1994, ch. 2, § 1 became effective, incorporating the amendments made by the 1992 sessions laws affecting subsections (m), (l), and (j) into one section.
The language deleted by the (m) session law in 1992 is not found in the 1994 session law merging the amendments made by the (m), (l), and (j) session laws. Thus, while not conclusive evidence of what the 1992 legislature intended, there is no question that the 1994 legislature did not believe the (m)(B) language deleted by the (m) session law survived the 1992 legislative session through re-enactment by the (j) and (l) session laws. Otherwise, the session law would have reprinted (m)(B) with strike-through type. On the other hand, as mentioned above, the legislature did delete K.S.A. 79-3602a and 79-3602b--both of which contained subsection (m)(B)--when it enacted L. 1994, ch. 2, § 5.
Prior to June 1, 1992, K.S.A. 79-3603 (Ensley 1989 ) imposed the following tax on electricity:
"For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax at the rate of 4.25% upon:
. . . .
"(c) the gross receipts form the sale or furnishing of gas, water, electricity, and heat, which sale is not otherwise exempt from taxation under the provisions of this act, and whether furnished by municipality or privately owned utilities."
In 1992, the legislature amended 79-3603 with the following:
"For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax at the rate of 4.25% 4.9%, unless otherwise more specifically provided, upon:
. . . .
"(c) the gross receipts from the sale or furnishing of gas, water, electricity and heat, which sale is not otherwise exempt from taxation under the provisions of this act, and whether furnished by municipally or privately owned utilities;
. . . .
"(u) the gross receipts received from all sales of electricity, gas and water which is essential or necessary to and which is used in the actual process of and immediately consumed or dissipated in: (1) The production, manufacture, processing, mining, drilling, refining or compounding of tangible personal property; (2) the providing of services; or (3) the irrigation of crops, for sale in the regular course of business, and which is not reusable for such purposes which shall be taxed at the rate of 2.5%" L. 1992, ch. 280, § 59.
New language is shown in italic type and deleted language is shown by strike-through type. The quotation above and the (m) session law discussed above are actually the same session law. Both became effective on June 1, 1992. K.S.A. 1992 Supp. 79-3603 was amended twice in 1994, but subsection (u) was not affected. Subsection (u) was deleted in 1995, effective April 15, 1995. L. 1995, ch. 118, § 3. The 1992 amendment to 79-3603 created two levels for the taxation of sales of electricity: K.S.A. 1992 Supp. 79-3603(c) and K.S.A. 1992 Supp. 79-3603(u).
Reconciliation of the session laws enacted during the audit period in this case is a question of law, and our review is unlimited. State v. Jurdan, 258 Kan. 848, 850, 908 P.2d 1309 (1995). The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, an