Request By:
Roger Perry
Marshall County Attorney
P.O. Box 352
Benton, Kentucky 42025
Opinion
Opinion By: Robert F. Stephens, Attorney General; Rickie L. Pearson, Assistant Attorney General
Re: Home Rule and Occupational License Taxes
In your February 8, 1978, letter, you requested a formal opinion of the Attorney General's Office. The question posed was, "Would Marshall County be free to enact an occupational license tax under the general provisions of the Home Rule Statute as modified by the State's Supreme Court?"
This office is of the opinion that Marshall County would be free to enact an occupational license tax under the general provisions of the Home Rule Statute as modified by the State's Supreme Court. Also, Marshall County would have the same freedom under the new Home Rule Statute enacted by the Legislature during the 1978 session.
In Fiscal Court of Jefferson County v. City of Louisville, Ky., 559 S.W.2d 478 (1977), the Kentucky Supreme Court held that:
"The statute granting county fiscal courts 'carte blanche' authority to administer county government to the same extent as if the General Assembly had expressly granted and delegated to the fiscal courts all the authority that is within the power of the General Assembly to grant them was an overly broad delegation of the powers of the General Assembly; as to those powers not enumerated in section of the Constitution providing for delegation to counties of power to impose and collect license, franchise and occupational taxes, the legislation was a nullity. " (Emphasis added.)
Pursuant to KRS 67.083, the Home Rule Statute, it is provided that:
"(1) The fiscal court of any county is hereby authorized and empowered to exercise all rights, powers, franchises, and privileges including the power to levy all taxes not in conflict with the constitution and statutes of this state now or hereafter enacted, which the fiscal court shall deem requisite for the health, education, safety, welfare, and convenience of the inhabitants of the county and for the effective administration of the county government to the same extent as if the general assembly had expressly granted and delegated to the fiscal court all the authority that is within the power of the general assembly to grant to the fiscal court of said counties. (Emphasis added.)
"(2) The county judge is hereby authorized and empowered to exercise all of the executive powers pursuant to subsection (1) of this section.
"(3) The powers granted to counties by this Act shall be in addition to all other powers granted to counties by other provisions of law. A permissive procedure authorized by this Act shall not be deemed exclusive or to prohibit the exercise of other existing laws and laws which may hereafter be enacted but shall be an alternate thereto."
As to the above-cited statute, the Kentucky Supreme Court reasoned and stated that:
"Sec. 181 of our Constitution provides that the General Assembly may delegate to counties the power to impose and collect license, franchise and occupational taxes. At the time the General Assembly passed this statute it had to know that by the terms of Sec. 181 these powers effectively passed to the counties. To that extent and no further, its action was thoughtful, purposeful and deliberate. As to those powers not so enumerated, the grant is legislation in a vacuum and a nullity. " (Emphasis added.)
This reasoning denotes that occupational license taxes were not affected by the Court's decision to substantially declare KRS 67.083 a nullity. The basis for preserving the fiscal court's power to impose and collect occupational license taxes is derived from the fact that the power to perform the act was specifically enumerated under the Kentucky Constitution. Furthermore, when the powers were delegated through the enabling Act (KRS 67.083), the fiscal court expressly knew the scope and nature of the delegation.
Finally, it must be stated that Marshall County may enact an occupational license tax pursuant to the new Home Rule Statute as enacted and amended by the State Liegislature during the 1978 session, since it contains language identical to that found in KRS 67.083. The new statute provides identical language in the following manner:
"The fiscal court of any county is hereby authorized to levy all taxes not in conflict with the Constitution and statutes of this state now or hereafter enacted."