Request By:
Honorable Harold Stumbo
Floyd County Attorney
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Recently the Floyd County Fiscal Court adopted an order which stated that it was mandatory for all coal trucks to be covered on any public highway. You have doubts as to its constitutionality. There is a general statute, KRS 189.150, which provides that "no vehicle shall be operated upon any highway unless it is so constructed as to prevent its contents from escaping."
We think your doubts as to its constitutionality are well founded. In the recent decision of the Supreme Court of Kentucky (76-604), Fiscal Court of Jefferson County v. City of Louisville, et al (September 16, 1977), a unanimous court held that a fiscal court has no legislative authority under the Constitution, citing § 29, thereof. The court was of the opinion that fiscal courts of this state are not legislative bodies under the constitution and that the General Assembly cannot declare them as such. Thus they struck down the home rule statute, KRS 67.083. The court cited in support of its decision the cases of Bloemer v. Turner, Ky., 137 S.W.2d 387 (1939); and Holsclow v. Stephens, Ky., 507 S.W.2d 462 (1974).
We conclude the ordinance in question is unconstitutional.
From the prosecutorial standpoint, you have KRS 189.150. In addition, see KRS 433.753, dealing with criminal littering. KRS 512.070 makes criminal littering a class B misdemeanor. OAG 75-468 is hereby withdrawn.