Request By:
Honorable David Blair
Elliott County Judge
Sandy Hook, Kentucky 41171
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Elliott County's ambulance program is being conducted through the operational work of the Elliott County Ambulance Service, Inc., a Kentucky nonprofit corporation. KRS 65.710 and 65.730. No emergency ambulance service district has been created. KRS 108.100.
On June 26, 1976, the Elliott County Fiscal Court passed a .5 mill ad valorem tax on each $100 of real estate in the county assessed for local taxation, in order to fund the county's ambulance service. You have indicated that this special ad valorem tax was within the roll-back limits imposed on the county tax rate as set forth in KRS 68.245. See also KRS 68.090. The county budget, which reflected this special tax, was approved by the State Local Finance Officer.
Your question: Was the special ad valorem tax to fund the ambulance service valid?
Sections 171 and 181 of the Kentucky Constitution permit the General Assembly to provide by general laws that counties can levy ad valorem and occupational or license taxes. See
George Wiedemann Brewing Co. v. City of Newport, Ky., 321 S.W.2d 404 (1959) 406; and
Driver v. Sawyer, Ky., 392 S.W.2d 52 (1965).
The fiscal court, under KRS 67.083 [Home Rule statute], is empowered to levy all taxes not in conflict with the constitution and statutes of Kentucky. Thus KRS 67.083 is in implementation of §§ 171 and 181 of the Constitution. The tax power is narrowed, however, to the two kinds of taxes: (1) ad valorem taxes; and (2) occupational or license taxes. Since the tax in question was a special ad valorem tax within the roll-back and constitutional fifty cents (50 ) limitations, it only remains to determine whether there is any statute in conflict with this special levy.
The county attorney believes that the tax is invalid since it was not submitted to the voters pursuant to the emergency ambulance service district legislation and specifically as required by KRS 108.100. The simple answer to that view is that no such district has been created. KRS 108.010, et seq. , does not apply. The filing of a certified petition is necessary to set that legislation in effective motion.
The county public service program legislation is collected under KRS 68.510 et seq. [see H.B. 799, Ch. 347, 1974 Acts]. From the reading of that act and preamble, we think two essential points emerge: (1) The legislation provides for submitting to the electorate a special ad valorem tax or occupational license tax to fund newly instituted or expanded "service" programs [noncapital expenditures] ; (2) The use of this legislation is required for newly instituted or expanded public service programs [noncapital expenditures] , provided that the roll-back county tax rate is inadequate to fund such programs. Obviously if the roll-back rate is to be exceeded, the people have to vote the special tax if they want it. This legislation provides that voting mechanism. See
Raque v. City of Louisville, Ky., 402 S.W.2d 697 (1966) 698, 699, holding that the electorate can intentionally vote on themselves an ad valorem tax in excess of the roll-back level or constitutional [§ 157] level. Thus where the special tax would exceed the roll-back level, and a "public service program" as defined in KRS 68.520 is involved, the fiscal court must follow KRS 68.530 and submit the program to the electorate, if such ad valorem tax is to be imposed. See KRS 68.510 which explicity ties in the concept of inadequate income and revenues with "rollback" legislation.
However, where the special tax is within the roll-back rate, as is the case here, the fiscal court does not have to use KRS 68.510 et seq. In this situation we see no statutory conflict with the subject tax. We conclude that the special tax to be used for ambulance service was valid under KRS 67.083, which was used in implementation of the constitutional authority to levy ad valorem taxes.
Any prior opinion of this office in conflict with this opinion is modified accordingly.