Request By:
Honorable Bobby L. Rose
Estill County Judge
Irvine, Kentucky 40336
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Office of General Counsel of the United States Department of Agriculture has requested that you obtain our opinion as to the authority of a fiscal court to operate and maintain a "flood control structure." You told us on the phone that the County Soil Conservation Service will build an earthen dam on Chamberlin Branch if the county will agree to maintain it, we assume, over a number of years. Maintenance would include keeping it properly sodded. The dam would prevent the rapid run off of water in the event of flash flooding and would thus protect an otherwise vulnerable flood plain area encompassing private and commerical buildings located between Irvine and Ravenna.
Since the maintenance agreement could involve expenditures of county funds over a number of years and could involve financial obligation beyond a fiscal year's budgeting, the agreement would technically violate § 157 of the Kentucky Constitution. The policy of "pay-as-you-go", as expressed in § 157 of the Constitution, means that obligations cannot be created to be paid out of revenues to be collected after the termination of the fiscal year. In other words, the debt must run concurrently with the current revenues else there will be a contravention of the limit provision. Section 157 provides that no county shall be permitted to become indebted, in any manner or for any purpose, to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose. Meyer v. City of Louisville, 310 Ky. 348, 220 S.W.2d 852 (1949) 854.
We conclude that such a long term agreement of the fiscal court to maintain the dam would violate § 157 of the Constitution. KRS 67.083 does not hurdle this constitutional hazard.
If the dam were to be leased to the county for one year at a time, with option to renew for additional one-year-at-a-time periods, then the agreement to maintain for only one year at a time would meet this constitutional requirement. Turnpike v. Wall, Ky., 336 S.W.2d 551 (1960).
In the event that the cost of maintenance could be reasonably calculated for the entire contract period, and if the total cost could be met by inserting the necessary amount in the current budget, the constitutional objection would be overcome.