Request By:
Mr. Jesse W. Link
Simpson County Judge/Executive
Courthouse
Franklin, Kentucky 42134
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether the fiscal court could condemn land to provide additional land for a church to expand its cemetery.
Certain cities have the express power to condemn land for the purpose of operating a cemetery [KRS 88.100, 103.010 and 103.040]. KRS 67.083(3)(g), which provides that any fiscal court may enact ordinances, appropriate funds and employ personnel for cemeteries, does not expressly authorize counties to condemn for such purpose. However, KRS 67.085 contains an express general power of condemnation. It reads:
"Whenever the fiscal court of any county deems it to be in the best interest of the county to acquire the fee simple title to any real property within such county for any administrative or governmental purpose in addition to those now provided for by law and the fiscal court is unable to contract with the owner of the land, required for such purpose, for its purchase or to acquire the same by gift, the land may be condmned under the procedure set forth in the Eminent Domain Act of Kentucky, and said fiscal court may appropriate funds to pay for said real property. "
It is our opinion that a fiscal court may condemn land to establish and operate a county cemetery. KRS 67.083 (3)(g) expressly makes cemeteries a public purpose, a county governmental purpose. KRS 67.085 expressly authorizes a fiscal court to condemn land for such governmental purpose. See KRS 416.540 [Eminent Domain Act of Kentucky] . These statutes constitute an express or specific delegation of such power, as required by the Supreme Court of Kentucky in Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977). "A public cemetery is as much a public place as a courthouse or a market." 14 C.J.S., § 1, p. 63.
However, we are of the opinion that the statutes do not authorize spending county money in the condemnation of property to provide additional cemetery land for a church. Such condemnation would not be for a public and county purpose as authorized by statute. The carrying out of the purpose you describe would require an express statute to that effect. For reasons given we do not think it necessary to consider any possible constitutional questions.