Request By:
Mr. Charles D. Wickliffe
Attorney, Executive Department
for Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A construction project undertaken by your department on behalf of a state university located in a city of the second class has encountered a problem. The city has an ordinance, adopted under the permissive authority of KRS 227.450 to 227.500, providing a local inspection program which requires all electrical work within the corporate limits to be done in accordance with a permit obtained for a fee from the city electrical inspector. The inspector is entitled to a fee. The city has threatened to issue a stop order to your electrical contractor's work unless an electrical permit is obtained from the city and the inspector's fee is paid, for a total amount of $2,895.00. Such action, if taken by the city, will shut the project down, since the contractor, if he pays such fees, will look to the state for reimbursement. The state apparently does not intend to pay such fees.
Your question is: Can the city require the Commonwealth of Kentucky to comply with the requirements of the city's inspection ordinance? In our opinion, the answer is "no".
While KRS 227.480 provides that a city or county may require any person to obtain permits before commencing construction of any electrical wiring, it is our opinion that KRS 227.450 to 227.500 has no application to the state or state agencies, since there is no clear and express provision in those statutes that the state has surrendered its sovereign powers to political subdivisions.
As stated in
Kentucky Inst., Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402 (1906), the principle is that the state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property which the state has authorized another body or power to control. It is competent for the state to retain to itself some part of the government even within the municipality which it will exercise directly. The court said: "How can the city have ever a superior authority to the state over the latter's own property?" From the nature of things it cannot. The tail cannot wag the dog. See also
Covington Bridge Commission v. City of Covington, 257 Ky. 813, 79 S.W.2d 216 (1935) 221, and
City of Georgetown v. Morrison, Ky., 362 S.W.2d 289 (1962) 293, requiring that any local power over a state agency must be expressly given by the constitution or statute.
The state university is a state agency, and the above principle of express legal provision applies.
Daniel's Adm'r v. Hoofnel, 287 Ky. 834, 155 S.W.2d 469 (1941).
This view is buttressed by our zoning law [RKS 100.361(2)], whicnh provides in part that nothing in the chapter shall impair the sovereignty of the Commonwealth of Kentucky over its political subdivisions.
Based upon the foregoing reasoning and authorities, it is our considered opinion that the city in question has no authority to apply its electrical permit system to this state agency, a state university. It is important to understand, as you do, that the imposing of the permit system upon the state's electrical contractor is in effect imposing it upon the state, since otherwise the state would have to reimburse the contractor for such expense.
See OAG 67-552, of related interest.