Request By:
Honorable Roger William Perry
County Attorney
Marshall County Courthouse
P.O. Box 352
Benton, Kentucky 42025
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 16 concerning the establishment in Marshall County of an emergency ambulance service district pursuant to KRS 108.080 and 108.180. Your specific question is whether or not the referendum establishing said district must be placed on the general election ballot on November 6.
The answer to your question would be in the affirmative. KRS 108.100 specifically provides that the question of establishing the district is to be placed on the next regular election ballot. The primary, for example, is merely a nominating procedure and not an election.
There is only one regular election each year in Kentucky and that is on the first Tuesday after the first Monday in November as required under § 148 of the Constitution. Section 147 of the Constitution defines the word "elections" to include decisions on questions submitted to the voters. See also KRS 118.015(2). Also, as mentioned, § 148 provides that no more than one election each year shall be held in this state or in any city, town, or district, or county thereof, except as otherwise provided in the Constitution, and said election must be held on the first Tuesday after the first Monday in November. There are four (4) types of elections that are exceptions under this section of the Constitution, however, they are not applicable in this instance. Referring to the case of Ginsburg, Mayor v. Giles, 254 Ky. 720, 72 S.W. 438 (1934), we find the court stating the following:
"It is not permissible for a city to hold an election submitting to the voters a public question on any day other than that fixed by section 148 for the holding the regular annual election, which is the first Tuesday after the first Monday in November of each year; nor for a county to hold a special election submitting a like question to the voters of the county on any day other than the day of the regular November election. Any other construction of section 148 would inevitably lead to the practice of calling elections on public questions on any day fixed in the order or resolution directing it to be called, which prevailed under the Constitution of 1850, to prevent which section 148 of the Constitution of 1891 was adopted. The holding of an election by a governmental unit, for the purpose of submitting to the voters thereof, a public question, is in a sense special election, but when held it must be on the day fixed by section 148 -- the first Tuesday after the first Monday in November. To construe this section otherwise is to be forgetful of its purposes as they are expressed by its own language.
"Section 148 of the Constitution has been uniformly construed by this court to include all elections other than primary elections and the four exceptions we have already indicated, whether the election be held for a 'decision of questions' submitted to the voters as well as 'the choice of officers' by them. Belknap v. City of Louisville, 99 Ky. 474, 36 S.W. 1118, 18 Ky. Law Rep. 313, 34 L.R.A. 246, 59 Am. St. Rep. 478; Morgan et al. v. Goode et al., 151 Ky. 284, 152 S.W. 582; Walker v. Goode, 153 Ky. 795, 156 S.W. 893; City of Murray v. Irvan et al., 170 Ky. 290, 185 S.W. 859."
See also the case of Patterson v. Lawson, 255 Ky. 781, 75 S.W.2d 507 (1934).
We are enclosing a copy of OAG 76-190 that gives a somewhat more detailed resume of the law relating to your question.
Under the circumstances, we must hold that the question of establishing an ambulance service district can only be placed on the November general election ballot to be held on the first Tuesday after the first Monday in November, which this year would be on November 6, 1979.