Request By:
Ted L. Igleheart, Esq.
Shelby County Attorney
Shelby County Courthouse
Shelbyville, Kentucky 40065
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter stating that the Shelby County Fiscal Court is considering the adoption of an ordinance requiring dogs to be kept on their owners' premises or under restraint, except where the owner's premises exceeds five acres. The fiscal court is of the opinion that a referendum vote can be held at the November election allowing people to vote for or against the proposal. It has been suggested that the county home rule statute would allow such a referendum. You state that you find no statutory authority allowing or prohibiting such a referendum and you ask whether the fiscal court may place a dog restraint law on the November ballot by referendum.
Our response to your question would be in the negative unless the question to be submitted involves the creation of a county obligation under the terms of Sections 157 and 158 of the Kentucky Constitution. In that case a vote of the people would be necessary at the November election as those sections require such a vote where the governmental obligation exceeds the current anticipated revenue available in a particular year. See OAG 76-368, copy enclosed.
In absence of any constitutional or statutory authority we doubt that the proposed issue could be legally placed on the ballot. In 26 Am.Jur. 2d, Elections, § 183, the following appears:
"It is fundamental that a valid election cannot be called and held except by authority of the law. There is no inherent right in the people, whether of the state or of some particular subdivision thereof, to hold an election for any purpose. Accordingly, an election held without affirmative constitutional or statutory authority, or contrary to a material provision of the law, is a nullity, notwithstanding the fact that such election was fairly and honestly conducted."
Counties, of course, operate under the County Home Rule Act, KRS 67.083, which contains a broad range of legislative authority. However, that statute provides that no ordinance passed by a county can conflict with existing or future constitutional or statutory provisions. KRS Chapter 258 contains many of the statutory provisions dealing with dogs, dog wardens and dog control with no mention of submitting the question of a county dog restraint or leash law to the voters.
Thus, in our opinion, the County Home Rule Statute cannot be utilized for the purpose of placing the question of a county dog restraint or leash law on the ballot as this would conflict with the statutory provisions of KRS Chapter 258. If the county is interested in dog control it must proceed within the framework of KRS Chapter 258, and ordinances enacted pursuant to that chapter must be adopted by the fiscal court. There is neither constitutional nor statutory authority for placing a referendum on the ballot as to whether the county should adopt a dog restraint or leash law. Other opinions of this office, which are related to the subject matter of your inquiry and may be of interest, include OAG's 76-736, 73-246, and 75-690, copies enclosed.