Request By:
Hon. Tommy Joe Fridy
Fridy and Freeburger
P.O. Box 468
Sebree, Kentucky 42455
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 24 concerning the validity of the procedure taken by the City of Sebree in repealing an insurance tax ordinance. More specifically, you relate the following facts and questions:
"The City of Sebree duly passed a municipal premium tax ordinance on March 2, 1959 which was duly published on March 6, 1959, a certified copy of which is attached.
At the October 5, 1981 meeting of the Sebree City Council, a resolution or motion was passed to repeal this ordinance. No ordinance was ever passed and no publication ever made. A certified copy of this resolution is also attached.
Please opine as follows:
1. Did the October 5, 1981 resolution of the City Council of the City of Sebree repeal the existing municipal premiums tax.
2. Is the City of Sebree municipal premium tax ordinance dated March 2, 1959, as published on March 6, 1959, a valid ordinance and therefore still in full force and effect for the 1982 calendar year."
The insurance tax was, of course, appropriately enacted pursuant to an ordinance which is a regulation of general and permanent nature. In other words, it was necessary to enact in the first instance the licensing procedure pursuant to an ordinance which has been adjudged essential to accomplish such legislative purposes as that of levying a tax or exercising the power of licensing. See McQuillin, Mun. Corp., Vol. 5, Sec. 15.04.
In like manner a municipal corporation can repeal an ordinance only by an act of equal dignity; that is by an ordinance and not by methods not passed and published with the same formality as is required by ordinance. See McQuillin, Mun. Corp., Vol. 6, Sec. 21.13 cited in the case of
Valentine v. Juneau, 36 F.2d 904.
A resolution, on the other hand, is not mentioned in the Municipal Code except by way of reference to those in effect prior to the Code's adoption in 1980. See KRS 83A.020(2). The term "resolution" is, however, synonymous with the term "order" as pointed out in McQuillin, Mun. Corp., Vol. 15, Sec. 15.08. The Municipal Code does define a "municipal order" under KRS 83A.010(8) as meaning an official act of the legislative body but may be used only in lieu of an ordinance in matters relating solely to the internal operation and function of the city such as the appointment or removal of members of boards and commissions, over which the city has control.
On the other hand, a resolution or legislative order is not an ordinance and does not have the dignity of an ordinance unless enacted with the formalities of an ordinance, in which event it will be treated as an ordinance and must, of course, be published to be effective. See
Massey v. City of Bowling Green, 206 Ky. 692, 268 S.W. 348 (1925). Thus the distinction between a resolution and an ordinance depends in some degree on the formalities attending their adoption. See
Masonic W & O Home v. Corbin, 229 Ky. 375, 17 S.W.2d 215 (1939).
Under the circumstances and in response to your question, the resolution adopted by the city council repealing the existing municipal premium tax ordinance would not be legally effective unless it was enacted by following the same procedure for enacting ordinances generally as required under KRS 83A.160(9). Since you failed to enclose a copy of the resolution or any information concerning the procedure followed in its passage, our response would thus be limited accordingly.
Assuming, however, that the repealing resolution was not enacted with the same formality as an ordinance, it would have no legal effect, in our opinion, in repealing the 1959 ordinance.