Request By:
Hon. Donnie Watson
County Judge/Executive
Estill County Courthouse
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns a fire protection district. It reads in part:
"Here in Estill County we are being faced with insufficient revenues with which to operate our County Fire Department. Since H.B. 44, in effect, prevents us from raising County property tax revenues by more than 4%, we have been seeking other financing for the fire department. It appears that the establishment of a county fire protection district, with its own taxing powers, is a solution that would relieve pressure on our county budget.
In looking at the Kentucky Revised Statutes, there appears to be two main methods of creating a fire protection district. My question is: are both methods equally valid, or does one take precedence over the other?
KRS 67.715(2) states:
'The county judge/executive or county judges/executive of multi-county districts may, with approval of the fiscal court or fiscal courts, create any special district, or abolish or combine any special district, provided such district was created solely by one or more such fiscal courts.'
Does this statute give the Fiscal Court the power to create a fire protection district?
In KRS 75.010 and 75.025, provisions are made for establishment of a fire protection district after petitions by either 51% of the registered voters or 75 landowners in the affected area. Either the County Judge/Executive or Fiscal Court must hold a hearing, upon proper petition, and either take no action or order the creation of the district.
Do KRS 75.010 and 75.025 overrule KRS 67.715(2)? Or, may a fire protection district be created, under KRS 67.715(2), by Fiscal Court without the petition process?"
KRS 75.010 provides that a fire protection district may be created by an order of the county judge/executive based upon the proper filing of a petition signed by at least fifty-one percent (51%) of the voters living in the proposed district area. Pursuant to KRS 75.025, a fiscal court of any county, upon petition of seventy-five (75) freeholders of the proposed district, may establish a county fire protection district.
At this point, KRS 75.010 and KRS 75.025 point out two different methods whereby a fire protection district may be established. Basically both statutes provide for the creation of fire protection districts in any county territory (outside of any municipality wherein a fire department is maintained) by the petition method. The fundamental difference lies in the method of establishment. Under KRS 75.010, the procedure is more detailed and provides for such establishment through the order of the county judge/executive. Any aggrieved person may appeal such an order in circuit court. Under KRS 75.025, the establishment is effected through the fiscal court, which order may be appealed to the circuit court.
Under the rule of "in pari materia" (on same subject), such statutes should be construed together so as to harmonize and give effect to provisions of each. Economy Optical Co. v. Kentucky Board of Opt. Exam., Ky., 310 S.W.2d 783 (1958) 784. Thus the two statutes are mutually exclusive and provide for court review.
KRS 75.010 was last amended in 1978 (1978 Acts, Ch. 384, Sec. 195, eff. June 17, 1978). KRS 75.025 was enacted in 1964 (1964 Acts, Ch. 56, Sec. 1).
KRS 67.715(2) reads:
"(2) The county judge/executive or county judges/executive of multi-county districts may, with approval of the fiscal court or fiscal courts, create, any special district or abolish or combine any special district, provided such district was created solely by one or more such fiscal courts."
The power of a county judge executive, with approval of the fiscal court, to create a special district must necessarily refer to special districts treated in existing state legislation. Thus a fire protection district, as mentioned in KRS Chapter 75, is a special district.
The effect of KRS 67.715(2), as relates to the creation of a special district, is simply that the General Assembly has provided a method of creation of special districts in addition to any other methods presently in statutory existence. We see no conflict of KRS 67.715(2) with KRS 75.010 and 75.025 as applied to the creation of a fire protection district. As we said earlier herein, under the rule of "in pari materia" , KRS 67.715(2) is harmonized and integrated with KRS 75.010 and 75.025. Economy Optical Co. v. Kentucky Board of Opt. Exam., above.
When a fire protection district is created under KRS 67.715(2), the county judge executive order and order of fiscal court should be carefully worded to disclose the intended creation of a fire protection district as treated in KRS Chapter 75.
Once the fire protection district is properly created pursuant to KRS 67.715(2), then under KRS 75.040(1), the trustees of such district are authorized to establish and operate a fire department in such district and to levy a tax upon the property in that district, not exceeding ten cents (10 ) per one hundred dollars of valuation as assessed for county taxes, for the purpose of financing the district fire department operation or to make contracts for fire protection for such district as provided in KRS 75.050.
Note that such fire protection district so created would be a special and separate taxing district under §§ 157 and 158 of the Kentucky Constitution. In other words, such district taxes are separate and apart from county taxes.
CONCLUSIONS
It is our opinion as follows:
(1) KRS 67.715(2) literally gives the county judge executive, with approval of fiscal court, the authority to create any special district without the petition process.
(2) The power of creating special districts relates only to those special districts treated by existing statutory law.
(3) Under KRS 67.715(2), as an alternate method of creation, a fire protection district can be created.
(4) Once a fire protection district is created under KRS 67.715(2), the powers of such district enumerated in KRS Chapter 75 apply, including the taxing power.