Request By:
Mr. Michael A. Stidham
Breathitt County Attorney
Main Street
Jackson, Kentucky 41339
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Breathitt County has authorized the expenditure of two thousand and five hundred dollars ($2,500) per month to an ambulance service operated by a private individual. At present you indicated that the person operating the ambulance service is using a couple of ambulances, owned by the county, under a county lease with a rental of $1.00 per year. That person proposes now to purchase his own ambulances, except that he requested the county to pay him $2500.00 per month for operational costs of the ambulance service. We assume the ambulance service is being operated for a profit.
Ambulance service, as relates to the county, may be furnished under one of three situations: (1) The county operates an ambulance service directly, i.e., the fiscal court provides the personnel and equipment as a county operation. (2) The ambulance service is provided by an ambulance service district created under KRS Chapter 108. (3) The fiscal court, under bidding procedure required by § 164, Kentucky Constitution, awards a franchise to a private person or corporation for the furnishing of ambulance service in the county.
A "franchise" , in connection with §§ 163 and 164, Kentucky Constitution, has been defined as "an agreement between the granting authority and the holder and partakes of the usual incidents of a contract." City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972) 287. The underlying basis for a franchise rests upon the county's control over roads and highways located in the unincorporated portion of the county. See KRS 178.010. Clearly the fiscal court has the authority under §§ 163 and 164 of the Kentucky Constitution to issue a franchise to a private person or corporation after the bidding procedure required by § 164. See Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967).
You have informed us that the person operating the ambulance in your county has received no franchise, and the fiscal court did not make use of §§ 163 and 164, Constitution. Thus no bidding procedure was used by fiscal court. The first question is whether such fact makes the present ambulance operation illegal.
Actually, the franchise procedure of § 164 is mandatory. Thus a franchise, where granted expressly by a formal document, or where the county by sufferance permits the ambulance service (here the fiscal court is permitting the ambulance service, as specifically referenced by the subject lease of the county's ambulances) , requires that the bidding procedure of § 164, Constitution, be strictly observed. Ray v. City of Owensboro, above.
We conclude that the ambulance service is not operating constitutionally. The pragmatic and legal effect of the situation means that the person operating the ambulance service is now subject to a mandamus suit in the local circuit court, in which the fiscal court may seek mandamus, compelling the defendant to cease his operation of an ambulance service on county roads, as defined above. See Rockport Coal Co.'s Trustee in Bankruptcy v. Tilford, 222 Ky. 288, 300 S.W. 898 (1928) 900.
The second question is whether or not a fiscal court can subsidize or contribute financially to a properly enfranchised ambulance service operation.
KRS 65.710 prescribes certain conditions relating to a city's or county's contracting for ambulance service.
KRS 65.730 (repealed in 1978) read:
"In addition to its other powers a county may provide for ambulance service for all sick and injured persons in the county either by operation of the service by the county; or by the county and any city or cities within the county cooperating to provide such service; or by the county contracting with a private person, partnership or corporation for providing such service; or by the county and a city or cities within the county contracting with a private person, partnership or corporation to provide such service. Any such service, whether operated by the county or contracted, shall meet the requirements imposed in KRS 65.710."
The legislation in 1978 (Ch. 118, § 19) repealing KRS 65.730 dealt substantially with the augmenting of the powers of fiscal courts in the amending of KRS 67.080 and 67.083. See especially KRS 67.083(3)(d), relating to the fiscal court's making provisions for ambulance service.
In view of the above case authorities and statutes, it is our opinion that a fiscal court may engage in a grant of county money for ambulance purposes to a properly enfranchised person or corporation (where § 164, Constitution is properly applied -- bidding procedure, etc.), provided it is done on a contractual basis to insure that the inhabitants of the unincorporated portion of the county are furnished ambulance service. See KRS 67.080, 67.083(3)(d) and 65.710.