Request By:
Mr. James Hite Hays
Shelby County Attorney
501 Main Street
Courthouse
Shelbyville, Kentucky 40065
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In Shelby County there is a problem concerning the dissolution of sanitation districts pursuant to KRS 65.170.
We assume you refer to sanitation districts created pursuant to KRS 220.010 to 220.540. See specifically KRS 220.020, 220.040, 220.110, 220.170, and 220.360.
The special districts legislation collected in KRS 65.164 to 65.176 applies to sanitation districts created under KRS 220.010 to 220.613, pursuant to KRS 65.164.
Apparently your county is interested in the dissolution of such districts by referendum under KRS 65.170. Subsection (2) of that statute provides that persons seeking a dissolution of a district shall submit a petition to the county clerk signed by at least fifty percent (50%) of that class of citizens who may by law petition for the creation of the district.
You say that an adequate number of signatures was obtained and certified by the Shelby County Clerk. See KRS 65.170(2) and 220.040.
Since this question of dissolution will appear on the ballot in November, 1981, you are anticipating questions arising as to who can legally vote on the dissolution question.
KRS 65.170(6) reads:
"Registered voters eligible to sign a petition for dissolution as provided by subsection (2) of this section shall be eligible to vote on the question of dissolution. " (Emphasis added).
Under the above statutes the person eligible to vote on the dissolution question must first be a registered voter in that county. Next we must examine the statutes to determine the other elements of eligibility for signing a petition for dissolution of a district, which elements of eligibility are identical with the eligibility for signing a petition for creation of a district. KRS 65.170(2). Thus ultimately we must go to the statute dealing with the eligibility for signing a petition creating a district.
KRS 220.040(1) reads:
"(1) Before the commissioner of sanitation districts shall establish a district, a petition, approved as to propriety and necessity by the county board of health of each county affected, shall be filed with the commissioner, signed by sixty percent (60%) of those in possession claiming as freeholders within the limits of the territory proposed to be organized into a district."
In order to sign a petition to create a district, the petitioner must be a freeholder, i.e., a landowner in possession in the county and in the district. Subsection (2) of KRS 220.040 uses the language "landowners" . Thus, in order for a person to be eligible to vote on the subject dissolution of the sanitation district, he must be a registered voter of Shelby County and particularly a registered voter in a precinct located within the boundaries of the sanitation district lying in Shelby County.
A "freeholder" has been defined as a person holding a freehold interest in real estate, i.e., an interest greater than a leasehold. Ferguson v. Board of Drainage Com'rs, Etc., 299 Ky. 538, 186 S.W.2d 16 (1945). The court, in City of Northfield v. Holiday Manor, Inc., Ky., 508 S.W.2d 756 (1974) 759, cited approvingly the rule that a freeholder is one who has actual possession of land for life or a greater estate. The court, in Pondexter v. Brumagen, 301 Ky. 699, 192 S.W.2d 960 (1946) 961, defined a "freehold" as "any estate of inheritance or for life in either a corporeal or incorporeal hereditament existing in, or arising from, real property of free tenure."
In Payne v. Fiscal Court, 200 Ky. 41, 252 S.W. 127 (1923), Judge Thomas, for the court, expressed the difficulty the courts have had with the term "freehold estate." However, the court approved of the concept that a freehold estate is an interest as much as, or more than, a life estate in land either for the life of the holder or put autre vie (for the life of another), and it is an estate of inheritance (estates transmissible by inheritance) , except a life estate. Blackstone was cited as saying that an estate of freehold is the possession of the soil by a freeman, which means that the possession must be held under the requisite of title, i.e., an estate for life or one of inheritance. Such an estate requires actual possession of the land. The holder of a vested remainder, who of course has no right to immediate possession, is not a freeholder. Here KRS 220.040(1) underscores the requirement of those "in possession claiming as freeholders. " (Emphasis added). Thus the strictness of the common law is expressly preserved by that statute. A freeholder must have the right to immediate possession of land.
In conclusion, in answer to your question as to who is entitled to vote on the question of the dissolution of a sanitation district located in your county pursuant to KRS 65.170, the eligible voter is a person: (1) who is a registered voter in Shelby County; and in a precinct located within the sanitation district, which district is in Shelby County; and (2) who is in possession of land claiming as a freeholder, i.e., a landowner, within the limits of the sanitation district located in Shelby County which is sought to be dissolved.
A freeholder is a landowner in possession of land (and has the right to immediate possession) located in the county and within the district sought to be dissolved. A freeholder is thus a landowner holding title in such real estate in the county and district, which title involves an interest greater than a leasehold. In other words, relating to quantum, the freeholder has actual possession of land for life or has a greater estate. The courts have used other language to describe the requisite title and possessory interest. It is that a "freehold" is an estate of inheritance or for life. To use the language of Payne v. Fiscal Court, above, a "freehold estate" is an interest as much as, or more than, a life estate in land either for the life of the holder or of another, and it is an estate of inheritance, except a life estate.
We feel that the above elements of eligibility should furnish to your county sufficient guidelines to determine eligibility of such voters or votes in the November election.