Request By:
Charles K. Belhasen, Esq.
241 Second Street
Paintsville, Kentucky 41240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking this office to render a formal opinion in regard to whether county government is compelled to maintain an animal shelter. You cite KRS 258.195 in support of your opinion that the fiscal court is required to maintain such a facility.
You are an officer of the Johnson County Humane Society and your organization is attempting to establish an animal shelter in the county which you hope to have supported in part by the fiscal court pursuant to its obligation under KRS 258.195.
KRS 258.195(1) provides in part that the fiscal court of each county shall employ a dog warden and that the fiscal court of each county shall establish and maintain a dog pound. The word "shall" is mandatory [KRS 446.010(29)] and, therefore, the fiscal court is required to employ a dog warden and to establish and maintain a dog pound. Furthermore, in Upchurch v. Clinton County, Ky., 330 S.W.2d 428, 430 (1959), the Court said in part as follows:
". . . it is our view there was a distinct duty expressly imposed by KRS 258.195(1) upon the members of the fiscal court of Clinton County to hire a dog warden and to bring into existence a dog pound. The duty required to be performed under this subsection was not of a discretionary nature; it was ministerial in character. The law states that a dog warden shall be appointed and a dog pound shall be established and maintained. The word 'shall' in each instance imparts the absolute necessity of carrying out these legal conditions according to their tenor." (Emphasis supplied by the court.)
See also Tipton v. White, Ky., 287 S.W.2d 422 (1956) and OAG 74-550, copy enclosed, at page two.
Since you contemplate the possibility of the fiscal court supporting in part an animal shelter to be established by the local humane society, we are enclosing a copy of OAG 78-516 for your information and consideration. Note particularly that Section 179 of the Kentucky Constitution prohibits the General Assembly from authorizing any county or city to appropriate money to any corporation, association or individual. See also KRS 258.195(1) providing in part that instead of setting up pounds, one or more counties acting jointly may take advantage of the facilities of suitable pounds already in operation by counties, cities, humane societies or other organizations or individuals.