Request By:
Mr. Ralph E. McClanahan
Estill County Judge/Executive
Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to OAG 80-56, in which we concluded that tax exonerations must be recorded in the county judge/executive's "Executive Order Book", maintained in the county clerk's office; and that a fee of five dollars ($5.00) must be paid to the clerk for such document where the document does not exceed three pages. See KRS 64.012.
Your question: Is the fiscal court required to pay this five dollars ($5.00) for each exoneration? The answer is "no".
Payments out of the county treasury must be based upon some express statutory provision. See Hazelip v. Fiscal Court of Edmonson County, 228 Ky. 80; 14 S.W.2d 398 (1929), in which the court pointed out at page 399 that counties are creatures of statute:
"The counties of the state are simply arms of the state government. . . . The fiscal court has only such authority as is conferred upon it. Public obligations are not created unless expressly authorized." (Emphasis added).
Any person claiming to be erroneously charged with any tax upon property not owned by him may, under KRS 133.130, file a complaint to that effect with the county judge/executive, who holds a hearing on the evidence offered. This is in the nature of an ex parte administrative procedure. Where the county judge/executive finds that the complainant was not the owner of the property assessed, he is required to enter an order exonerating the complainant from the tax liability. An appeal may be taken to circuit court from any final order of the county judge/executive.
Under the fee provisions of KRS 64.012 and under KRS 133.130, it is our opinion that the fee for recording the exoneration order will have to be borne by the complainant. The statutes make no provisions for payment by someone other than the complainant. The policy of a plaintiff's recovering his "costs" in ordinary and equitable actions, pursuant to KRS 453.040 has no application here, since there is no law suit brought, and thus no defendants as such are involved. It is stated in 73 C.J.S., Public Administrative Bodies and Procedure, Sec. 155, p. 488, that "Where administrative proceedings are essentially of a judicial character, costs should be assessed as in judicial proceedings." But here the proceeding before the county judge/executive is administrative in nature. If a complainant or petitioner under KRS 133.130 is to recover his administrative costs, an express statute would be necessary. We are not aware of such statute. In 20 Am.Jur.2d, Costs, Sec. 6, page 8, it is written that "Costs are a part of the burden of litigation, and no litigant is deprived of a constitutional right by statutes which impose such costs upon him." The same is true of administrative proceedings cost, such as this recording fee.
In summary, the complaining taxpayer will have to pay the $5 fee to the county clerk for recording his exoneration.