Request By:
Representative Mark Farrow
114 West Main Street
Georgetown, Kentucky 40324
Opinion
Opinion By: Steven L. Beshear, Attorney General; By Alex W. Rose, Assistant Attorney General
This is in response to your letter of May 28, 1982, in which you requested an opinion as to whether House Bill 500, which was passed and signed into law during the 1982 Session of the General Assembly, is applicable to current sheriffs. In particular, you ask if that portion of House Bill 500 which repealed the provisions regarding the lien on the property of sheriffs for tax collection purposes removes the lien on the real property of sheriffs currently in office.
The repealed provisions are contained in KRS 134.230 (4) and (5) of the present statutes. Those provisions state, in pertinent part, as follows:
"(4) The state, county and taxing districts shall have a lien, from the date the sheriff begins to act, upon the real property of the sheriff then owned or that may afterwards be acquired by him during his term as sheriff or special tax collector. The same lien shall exist upon the real property of a usurper of the office of sheriff, a de facto sheriff or any person who acts as sheriff.
(5) The lien referred to in subsection (4) above shall not be discharged until four (4) years have elapsed from the expiration of his term of office without any action having been commenced to assert the lien, or until a quietus from the state, county and taxing districts has been filed and recorded in the office of the county clerk for each of the tax periods during the sheriff's term, whichever of these two (2) events shall first occur."
This statutory lien creates a claim by the state, county and taxing districts on the real property of a sheriff for the performance of the sheriff's tax collection duties. The claim arises at the time the sheriff takes office.
The General Assembly has provided in KRS 446.110 as follows:
"No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." (Emphasis added)
The General Assembly has also provided in KRS 446.080(3) as follows:
"No statute shall be construed to be retroactive, unless expressly so declared."
House Bill 500 becomes effective on July 15, 1982. See Section 55 of the Kentucky Constitution. The bill does not expressly state that its provisions are to be retroactive so as to be applicable to sheriffs who have taken office prior to its effective date. Consequently, the above-quoted mandates of the General Assembly require that the statutory lien provisions repealed by House Bill 500 remain in effect for sheriffs currently in office.