Request By:
Honorable Russell Stephens
Harrison County Judge
Courthouse
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Harrison County has been requested to consider an ordinance permitting certain kinds of retail activities to remain open for business on Sunday afternoons [after Sunday at noon] pursuant to KRS 436.165. That statute refere expressly to the legislative body, i.e., a "legislative body" of a city or county.
Your question is whether the fiscal court can take any such action under this statute at this time. The answer is "no".
The Supreme Court of Kentucky, in Fiscal Court of Jefferson County v. City of Louisville, etc. (76-604) [decided September 16, 1977], held that fiscal courts are not legislative bodies, and that the General Assembly cannot declare them to be such.
It is clear from reading KRS 436.165 that the legislature, in providing for the implementing of the statute by a city or county in passing an ordinance permitting retail sales activities on Sunday afternoons, had in mind the premise that fiscal courts in such circumstances would be acting in a "legislative capacity." "The legislative power has been described generally as being the power to make, alter, and repeal laws." 16 Am.Jur.2d, Constitutional Law, § 227, p. 476. In other words, in order to implement properly KRS 436.165, the fiscal court would have to pass a law. A municipal ordinance is legislation. Doyle v. City of St. Paul, 206 Minn. 542, 289 N.W. 785, 788 (1939); and Artz v. Commercial Nat'l Bank of Peoria, Ill., 259 N.E.2d 813 (1970). Actions which relate to subjects of permanent or general character are "legislative." Keigley v. Bench, 97 Utah 69, 89 P.2d 480, 484, 485 (1939) 122 A.L.R. 756. In Keigley the court said, at page 484, that the "crucial test for determining what is legislative and what is administrative is whether the ordinance is one making a new law, or one executing a law already in existence." Here KRS 436.165 is basically a law of the General Assembly delegating the authority to make a law permitting and regulating other retail sales [other than those mentioned in KRS 436.160] and activities on Sunday within its territorial jurisdiction. A legislative act has been defined as "one which prescribes a general rule of conduct. . ." Stevens v. Haussermann, 113 N.J. Law 162, 172 A. 738, 741 (1934). Generally, a "legislative action" is a formulation of a rule to be applied to all future cases. Strumsky v. San Diego City Employees Retire. Ass'n., Cal. 520 P.2d 29 (1974). The Supreme Court of Appeals of Virginia, in Blankenship v. City of Richmond, 188 Va. 97, 49 S.E.2d 321 (1948), ruled that "an ordinance that regualtes or restricts the use of property regulates or restricts conduct with respect to that property and is purely legislative."
Since the implementing of KRS 436.165 by the fiscal court in enacting an ordinance permitting various retail stores to remain open on Sundays is legislative in character, your fiscal court cannot enact such an ordinance under the present ruling of the Supreme Court, which holds that a fiscal court has no legislative function.