Request By:
Honorable David H. Thomason
Henderson County Attorney
Courthouse
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a question about Riverport Authorities. It is our understanding that a Riverport Authority was created by Henderson County through its fiscal court pursuant to KRS 65.520.
Your question specifically is as follows:
"Whether by virtue of KRS 65.520(2) a properly created Riverport Authority is a corporation without ever having filed Articles of Incorporation. "
KRS 65.520(2) reads:
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"(2) The authority shall be a body politic and corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with and do all things reasonable or necessary to effectively carry out the powers and duties prescribed by KRS 65.510 to 65.650. The authority may exercise all powers granted to governmental agencies by KRS 58.010 to 58.140. The authority may exercise all powers, consistent with its powers, and duties stated in this chapter, granted by KRS 273.171 to corporations governed by KRS 273.161 to 273.390."
From the above statute it is shown that a Riverport Authority is a body politic and corporate with usual corporate attributes. In its corporate name it may exercise certain powers granted to governmental agencies and powers granted to nonstock, nonprofit corporations under KRS 273.171. It may do all things reasonable or necessary to carry out the powers and duties prescribed in KRS 65.510 to 65.650.
The basic purposes of a riverport authority are set forth in KRS 65.530(1):
"(1) The purposes of the authority shall be to establish, maintain, operate and expand necessary and proper riverport and river navigation facilities, and to acquire and develop property, or rights therein within the economic environs of the riverport or proposed riverport to attract directly or indirectly river-oriented industry. It shall have the duty and such powers as may be necessary or desirable to promote and develop navigation, river transportation, riverports, and riverport facilities, and to attract industrial or commercial operations to the property held as industrial parks."
In the promotion of river-oriented industry a riverport authority can condemn land, with the consent of the legislative body of the governmental unit in which the property is located.
In your situation the members of the authority were appointed by the county judge. KRS 65.540. The members serve without compensation. Under KRS 65.580, the fiscal court of your county can annually appropriate funds or levy a tax for the Riverport Authority. If this were a private corporation, it [KRS 65.580] would be unconstitutional under §§ 3 and 179 of the Kentucky Constitution. The authority's property is tax exempt.
We think that the provisions of KRS 65.510 through 65.650 indicate without any doubt that the subject Riverport Authority is a public or governmental agency or corporation with specifically assigned duties and powers relating to clearly defined public purposes. See KRS 65.630. It is not a private corporation. It exists solely for public purposes. The Riverport Authority is a public corporation and it became so by the act of the legislature in enacting KRS 65.510 et seq. Therefore it is not necessary that it be formally incorporated or have or file articles of incorporation. If it attempted to "incorporate" or file articles of incorporation such act would be illegal, void, and a nullity. When the Fiscal Court of Henderson created the Riverport Authority properly under KRS 65.520, and the members of the Authority were appointed, the Riverport Authority became a complete public corporation. While KRS 65.570 permits the Authority to prescribe rules and regulations dealing with its work and purposes, there is nothing in KRS Chapter 65 suggesting that a Riverport Authority has to have articles of incorporation. See