Request By:
Honorable C. Donald Wells
Pendleton County Attorney
400 Main Street
Falmouth, Kentucky 41040
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 27 in which you relate that the fiscal court has been approached by the Director of Comprehensive Care on behalf of the Pendleton County Mental Health Board concerning the imposition of a special ad valorem tax under KRS 210.480. Under the circumstances, you raise the following questions:
"(1) May the issue be placed on the ballot when the Fiscal Court has the discretion and judgment in the matter?
"(2) Connected with question (1), does not the Court, in fact, have the absolute or, at least, considered discretion to levy or decline to levy the tax after request by the Mental Health Board?
"(3) Assuming that, regardless of the result of the 'referendum' , the Court could levy or decline to levy the tax, would the issue have to wait to be placed on the general election ballot or could it be placed on the ballot in some fashion in the primary, or might we have a special election? I am referring to Const. section 171.
"(4) What is the procedure for getting the question on the ballot in an appropriate election? "
In response to your initial question, we find nothing under the provisions of KRS 210.480, relating to the levy of a special ad valorem mental health tax, that requires a referendum on the question of whether or not the requested tax is to be levied. As a consequence, we do not believe such an issue can be placed on the ballot. Referring to McQuillin, Mun. Corps., § 12.03, we quote the following general rule applicable to your question:
"Where there is no statutory authority for the submission of a question to the voters, such submission by a public authority clothed with power with respect to the question submitted Constitutes an unauthorized redelegation of delegated power, and the decision of the voters is not controlling or binding. . . ."
Next referring to the general rule on the subject as expressed in 26 Am.Jur. 2d, Elections, § 183, we find the following:
". . . 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."
Also of note with respect to your question is the recent decision by the Supreme Court of Kentucky invalidating the County Home Rule Act, KRS 67.083, wherein the Court declared in essence that the fiscal court possesses no authority which the legislature has not expressly or impliedly conferred upon it. Fiscal Court of Jefferson County v. City of Louisville (not yet reported). We also refer you to the case of Goodloe v. Baesler, Ky., 539 S.W.2d 298 (1976), concerning the right of the fiscal court, in the absence of legislative authority, to place a question on the ballot.
In response to your second question, KRS 210.480 provides, in effect, that the fiscal court may, upon receipt of the tax request, proceed to levy the proposed tax. Also, of note is the language to the effect that "if levied by the fiscal court", said special tax shall be collected in the same manner as other county ad valorem taxes. As distinguished from the word "shall" which is mandatory, the word "may" is defined as "permissive" under KRS 446.010 (20). Also, in contrast, for example, you will note where the legislature has used the word "shall" under KRS 160.593 concerning the levy of a utility gross receipts license tax for schools by the fiscal court, this office has declared that such levy is mandatory on the part of the court. See OAG 69-367.
Under the circumstances, it would thus appear that the fiscal court has complete discretion under the terms of KRS 210.480 as to whether or not a proposed ad valorem mental health tax will be levied.
In view of our answers to Questions 1 and 2, Questions 3 and 4 become moot.