Request By:
Mr. John W. Garner
Pulaski County Judge Executive
P.O. Box 712
Somerset, Kentucky 42501
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 82-600 a citizens group had proposed that the Taylor Fiscal Court impose an auto sticker tax, with the proceeds to be used to subsidize ambulance service in the county.
In that opinion we concluded that under KRS 67.083(3)(t), a fiscal court is authorized to levy an auto license tax as involving the county's police powers, imposed for the privilege of regularly using county streets or roads. It would be regulatory as affecting county road traffic. We further concluded that the proceeds of the auto sticker tax, while falling under the restrictive doctrine requiring such tax revenues as are reasonably necessary to fund the administrative cost of the exercised regulatory power, may be used to subsidize an ambulance service. Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721 (1941); and KRS 67.083(3)(d). As was said in Roe v. Commonwealth, Ky., 405 S.W.2d 25 (1966) 28, a license fee imposed under the police power must not be so large as to create the imputation of a revenue measure.
Your question reads:
"My question is relative to procedures of collecting the tax following KRS 67.083(3)(t). Does the Pulaski County Fiscal Court have the authority to legislate that the county court clerk collect the tax when a license tag is sold and then turn the tax to the court to subsidize the ambulance service? What would be the fee the court would pay the county court clerk for this service?"
The county clerk is a constitutional officer. The duties of a county clerk are those prescribed by the General Assembly by way of statutory law. See Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 829.
Unless we find some statute authorizing the fiscal court to require the county clerk to collect the tax, then no fiscal court order or ordinance containing such provisions would be valid. See Olive v. Coleman, 228 Ky. 127, 14 S.W.2d 404 (1929). The case of Conner v. Nunn, Ky., 455 S.W.2d 554 (1970), makes it clear that in the absence of a legal duty which an officer is required to perform, or a right to have such duty performed, an officer cannot be compelled to act.
Since we find no statute authorizing the county clerk to perform the duty of collecting a county auto sticker tax, it is our opinion that the fiscal court cannot impose such duty on the clerk. The question of fees for that work under this analysis is moot. Cf. KRS 67.120, which does not authorize a county clerk to collect such tax. Also Cf. KRS 134.800, 186.021, 186.040, 132.487 and 186A.035, relating to motor vehicle registration and the collection of ad valorem taxes on vehicles.