Request By:
Honorable David H. Ashley
City Attorney
City of Georgetown
City Hall
Georgetown, Kentucky 40324
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 5 in which you apparently raise the question as to whether or not a referendum could be held at the coming November election concerning the apparent location of a coal conversion plant in the city of Georgetown.
Unless there is some specific statutory authority for placing the question to a vote of the people, and we are unaware of any, no referendum can be held on the subject.
The law relating to the holding of elections or the placing of public questions to a vote of the people is clear in requiring specific authorization. Referring to McQuillin, Mun. Corps., Vol. 3, § 12.03, we quote the following general rule applicable to this subject:
"Where there is no statutory authority for the submission of a question to the voters, such a 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 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. Such action may be taken only by virtue of some constitutional or statutory enactment which expressly or by direct implication authorizes the particular election. The rule is firmly established that an election held without authority of law is void, even though it is fairly and honestly conducted."
Again in 29 CJS, Election, § 66, you will note the following:
"In all popular forms of government the power of a majority to bind the minority by a popular vote depends on the fact that the elections are held by virtue of some legal authority. There is no inherent right or power in the people to hold an election, and the system of elections in this country is not of common-law origin, since it was unknown to the common law.
"The right or power to hold an election must be based on authority conferred by law, and an election held without affirmative constitutional or statutory authority, or contrary to a material provision of the law is universally recognized as being a nullity, even though it is fairly and honestly conducted. . . ."
In
Kimbley v. City of Owensboro, 176 Ky. 532, 195 S.W. 1087 (1917), the Court declared and we quote ". . . the general rule is that elections cannot be held without affirmative constitutional or statutory authority. " See also
Goodloe v. Baesler, Ky., 539 S.W.2d 298 (1976).
We trust the above sufficiently answers your question.