Request By:
Michael L. Judy, Esq.
326 W. Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning House Bill 429, enacted by the 1982 session of the General Assembly. The Bill amends various provisions relative to the publication of the auditor's report and the city's financial statement. The law as amended will permit a city to publish the auditor's report in lieu of the financial statement required by KRS 424.220. The financial statement will still have to be prepared and submitted by the city to the local media even if it is not published. You state that the legislation amending the publication requirements will not become effective until mid-July of 1982 and your specific question is as follows:
"The question which arises is which publication law is applicable for the reporting of expenditures and income for the fiscal year of July 1, 1981 through June 1982."
It seems apparent that House Bill No. 429, effective July 15, 1982, was enacted as a response to the statements of the cities of Kentucky that they needed relief from the publication laws currently in existence. As set forth in OAG 81-37, copy enclosed, legislation enacted at the 1980 session of the General Assembly required that each city must publish a summary of the audit report, KRS 91A.040, and also must fully follow the publication requirements for a financial statement set out in KRS 424.220.
House Bill No. 429 which amends several statutes relating to publication requirements of cities, including KRS 91A.040 and 424.220, is basically an amendment of the municipal publication requirements. It does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published. The bill amending the publication statutes affects what a city publishes after the completion of the fiscal year. It does not affect the activities of a city during the fiscal year and it does not impair any vested rights.
Anticipating that the application of House Bill No. 429 to the publication requirements of a city relative to its fiscal year of July 1, 1981 to June 30, 1982 may be called retroactive legislation, we direct your attention to 82 C.J.S., Statutes, § 412, where the following appears:
"Literally defined, a retrospective law is a law which looks backward or on things that are past; a retroactive law is one which acts on things that are past. In common use, as applied to statutes, the two words are synonymous, and in this connection may be broadly defined as having reference to a state of things existing before the act in question. A retroactive or retrospective law, in the legal sense, is one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. However, a statute does not operate retroactively merely because it relates to antecedent events, or because part of the requisites of its action is drawn from time antecedent to its passing, but is retroactive only when it is applied to rights acquired prior to its enactment."
In Peach v. 21 Brands Distillery, Ky.App., 580 S.W.2d 235, 236 (1979), the Court said in part that, "A retroactive law is one which creates and imposes a new duty in respect to transactions or considerations already past."
Furthermore, in 73 Am.Jur.2d, Statutes, § 348, it is stated:
"A retrospective law, in the legal sense, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. It may be defined as one which changes or injuriously affects a present right by going behind it and giving efficacy to anterior circumstances to defeat it, which effect they did not have when the right accrued, or which relates back to and gives a previous transaction some different legal effect from that which it had under the law when it occurred. . . ."
Neither House Bill No. 429 nor the publication statutes existing prior to the 1982 amendments require that a city operating under a July 1 to June 30 fiscal year publish anything relating to finances and expenditures by July 15 (fifteen days after the end of the fiscal year) . Before a city is required to publish anything under the existing statutes or House Bill No. 429, the latter will have taken effect.
In conclusion, it is our opinion that House Bill No. 429, effective July 15, 1982, as to its publication provisions for municipal governments, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982.