Request By:
Mr. David LeMaster
Attorney at Law
95 Main Street
P.O. Box 69
Paintsville, Kentucky 41240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In July of 1977, the City Council of Paintsville and Johnson Fiscal Court adopted ordinances establishing a joint city-county recreation board purusant to KRS 97.035. Both enactments adopted a basic plan for the establishment of such joint project, as authorized by the statute.
You ask about the effect of the Home Rule decision on this action.
On December 9, in the case of Fiscal Court of Jefferson County v. City of Louisville, et al. (76-604 et al.), the Supreme Court of Kentucky, on petition for rehearing, modified its prior decision of September 16, 1977, on its face. In its September decision, the court had said that a fiscal court is not a legislative body nor could the legislature declare it to be such. However, in is modification of December 9, 1977, the court deleted such language about the fiscal court's not being a legislative body. While the court finally held that a general delegation of legislative power to a fiscal court is unconstitutional [see § 29, Kentucky Constitution], it expressly upheld any expressly delegated legislative authority to fiscal courts. The court wrote that "while the General Assembly may grant governmental powers to counties it must do so with the precision of a rifle shot and not with the casualness of a shotgun blast. The thoughtful, purposeful and deliberate delegation of a known power is required of the General Assembly. " (Emphasis added). See Hogge v. Rowan County Fiscal Court, 313 Ky. 387, 231 S.W.2d 8 (1950) 8, 9, holding that a fiscal court possesses no authority which the legislature has not expressly or impliedly conferred upon it; and its implied power is limited to the authority reasonably necessary to execute or to discharge its express duties. The Supreme Court has thus reiterated in the Home Rule case the ancient doctrine that a fiscal court's powers, to be valid, must strictly hang on some expressly delegated power.
Turning to your specific problem, it is our opinion that the legislative actions of the city and county were taken pursuant to a specific grant of power as contained in KRS 97.035. The wording of the statute sufficiently indicates, when measured under the Supreme Court criteria for specificity, a thoughtful, purposeful and deliberate delegation of power within the specific frame of a joint system of recreational facilities. For those reasons we are of the opinion that the legislative actions of the city and county were constitutional and valid as a delegable power under the statute.