Request By:
Max W. Parker, Esq.
Calloway County Attorney
Calloway County Courthouse
Murray, Kentucky 42071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assisttant Attorney General
This is in reply to your letter raising questions about the establishment of a fire protection district pursuant to KRS 75.010.
You state that numerous groups of citizens have been circulating petitions attempting to obtain the signatures of at least 51 percent of the voters in the areas with which they are concerned in order to establish fire protection districts pursuant to KRS 75.010. You estimate that there will probably be 13 separate petitions, each one covering one voting precinct in the county and setting forth as required by the statute the metes and bounds of the area encompassing that precinct.
Your questions are as follows:
"May the County Judge/Executive enter an order establishing one combined fire protection district for all of those voting precincts in the county which have complied with KRS 75.010 in that at least 51% of the voters in those (precincts) fire protection districts have signed the petition?
If 3 or 4 (precincts) districts which adjoin one another obtain the required number of signatures on a petition, may these be joined as one district instead of 3 or 4 separate districts?"
KRS 75.010 provides that a petition for the establishment of a fire protection district, signed by at least 51 percent of the voters living within the boundary of the proposed fire protection district, is to be filed with the county clerk. The petition must set out the metes and bounds of the proposed district, the number of voters thereof and other facts thought proper. Notice provisions are set forth and the statute also provides in part as follows:
"On the day provided for in the notice, the county judge/executive shall, if the proper notice has been given and publication made, and no written objection or remonstrance is interposed, enter an order establishing a fire protection district or a volunteer fire department district in accordance with the prayer of the petition, naming it, and describing the boundary thereof by metes and bounds."
KRS 75.010 further provides that when an objection is made to a petition by an inhabitant of the proposed fire protection district, the county judge/executive shall hear and determine same and enter an order establishing or refusing to establish the fire protection district as may seem proper.
Where no written objection to the petition has been filed, the county judge/executive, under the statute, has no discretion as to whether the fire district should be established. If the petition has the proper number of signatures, if it contains the material required by the statute, if proper notice has been given and publication made and if no written objection to the petition has been made, the statute requires that the county judge/executive enter an order establishing the fire protection district requested by the petitioners. The county judge/executive has no authority to reject a petition meeting the statutory requirements or to, in effect, combine several valid petitions and issue an order establishing one fire district or some number of districts less than has been requested.
Even where a written objection has been filed, the county judge/executive may only hear the objection and determine whether or not the particular district requested should be established. He still has no authority to join together or combine petitions and enter an order creating one fire district where several have been requested.
We recognize that if the county judge/executive is required under KRS 75.010 to enter an order establishing a fire protection district in response to every petition which merely meets the statutory requirements, it is possible than in some areas there may be too many fire districts and districts which are economically unable to provide adequate fire protection services. Under the applicable statute, however, the county judge/executive is not at liberty to determine how many districts should exist, what size a fire district must be and where it must be located. He has no discretion in absence of an objection to a petition and only limited discretion when an objection is made. If the situation needs to be corrected it is a matter for the General Assembly.
In connection with interpreting KRS 75.010, or any other statute, the court said in part in
Clark v. Clark, Ky. App., 601 S.W.2d 614 (1980), that where no ambiguity exists, a statute is to be interpreted according to what is actually said, not what might have been said but was not said. See also
Kentucky Ass'n., Etc. v. Jefferson Cty. Medical Soc., Ky., 549 S.W.2d 817 (1977). Furthermore, the courts are bound by statutory law as written and cannot interpose an exception which the General Assembly did not make.
Bedinger v. Graybill's Executor & Trustee, Ky., 302 S.W.2d 594 (1957).
Under the existing statutory framework, petitioners need to carefully consider the area to be served by the proposed fire district and should avoid the establishment of a fire district which would be unable, because of economics or otherwise, to perform the desired and needed services. An already established fire district, unable to perform some essential services, may be able to contract with another fire district pursuant to KRS 75.050 for such services. A fire district which is unable to function as anticipated should consider the possibility of dissolution (KRS 65.164 to 65.176).
In conclusion, it is our opinion that a county judge/executive in considering petitions for the establishment of fire districts pursuant to KRS 75.010 cannot enter an order establishing one combined fire protection district from all of the valid and proper petitions for individual fire protection districts nor can he order the establishment of one fire protection district from petitions involving separate but adjoining proposed districts.