Request By:
Ms. Patricia Collinsworth
Magoffin County Treasurer
Salyersville, Kentucky 41465
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Magoffin County and the City of Salyersville have established a joint parks and recreation board pursuant to KRS 97.035.
The fiscal court's legislative action in this regard was taken in the form of a resolution, which establishes the board, treats the matters of membership, board officers, duties of the board, board meetings, and special committees.
Your question is whether the establishment of the parks board system of fiscal court by a resolution is legal. The answer is "yes".
KRS 97.035(1) provides in part that the legislative bodies of such a county and city establishing a parks system by joint action "may by ordinance, order or resolution approve a plan for the establishment of such joint project and for the creation of a joint board representative of the subdivisions involved. . ." (Emphasis added). The alternatives as to legal format, i.e., ordinance, order or resolution, were stated in the original enactment of KRS 97.035 in 1958 [Ch. 124, § 4, 1958 Acts]. KRS 97.035 was last amended in 1978 [Ch. 382, § 2], the Governor signing it on March 30, 1978.
A "county ordinance" is defined in part in KRS 67.075(1) as "an official written act of a fiscal court, the effect of which is general and lasting in nature, which is enforceable within the jurisdiction of the county." The form of an ordinance and various requisites in passing an ordinance are dealt with in KRS 67.076 and 67.077. KRS 67.075 through 67.078 were enacted in 1978 [Ch. 118, H.B. 152]. H.B. 152 was signed by the Governor on March 28, 1978. Were it not for KRS 97.035, the establishment of a park system would be by ordinance, since it is a subject matter lasting in nature and general in character as a function in general government for the general public benefit.
It is our opinion that the options as to legal format in KRS 97.035 [ordinance, order or resolution] govern here, since the statute deals with a specific subject, i.e., creation of a park system. Judge Montgomery wrote in City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247, that as between legislation of a broad and general nature on the one hand, and legislation dealing minutely with a specific matter on the other hand, the specific shall prevail over the general. See also Wedding v. Wingo [U.S.C.A. -6, 1973] 483 F.2d 1131, 1135, holding that under the doctrine of ejusdem generis a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope. In addition, the amendment of KRS 97.035 was last enacted during the 1978 session. State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3 (1961) 6. Thus the later expression of the legislative will must govern.
While the language of options as to ordinance, order or resolution in KRS 97.035 were present in the original enactment in 1958, the amendment of 1978 republished the optional language; and the governor signed the bill two days after he signed H.B. 152.
It is our opinion, under this analysis and authority mentioned above, that it was legal to enact the establishing of the park system by way of a resolution.