Request By:
Honorable Robert G. Zweigart
City Attorney
Cochran Building
Maysville, Kentucky 41056
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Nancy M. Collins, Assistant Attorney General
Please excuse our delay in responding to your request for an opinion on whether a third class city, without forming a Board of Public Works, may establish a commission whose sole responsibility is the public cemetery. As supporting authority you cite KRS 97.530 together with KRS 103.020.
Of course, if the City of Maysville has created a Board of Public Works, the Board has the exclusive power and control over a public cemetery. See KRS 94.110. From the question presented, we assume Maysville does not have a Board of Public Works and does not wish to create one. Where the city has not created a Board of Public Works, KRS 94.070(4) mandates that the city council and its employees perform the duties of the Board.
By the enactment of KRS 97.530, the legislature expressly empowered the legislative body of a third class city to acquire, establish and maintain a public cemetery and to make the necessary appropriations and regulations for the use thereof. Although the statute does not expressly provide for the creation of a commission to administer the cemetery, the city, acting in its proprietary capacity by establishing a public cemetery, has the inherent power to create the commission by appropriate ordinance. See Keathley v. Town of Martin, Ky., 246 S.W.2d 152 (1952), and Foley v. Kinnett, Ky., 486 S.W.2d 705 (1972).
The provisions of KRS 103.020 apply only to cities of the fifth and sixth class. KRS 103.020 would not, therefore, provide authority for a third class city to establish a commission to administer a public cemetery.
In summary, a city of the third class acting in its proprietary capacity may establish a commission to administer a public cemetery.