Request By:
Mr. Damon R. Talley
Attorney at Law
Professional Arts Building
207 E. Main Street
Horse Cave, Kentucky 42749
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Presently, the Green River Valley Water District includes lands in both Hart and Barren Counties. Shortly after January 1, 1978, the district will need to extend its boundaries into Larue County, pursuant to KRS 74.115, and will need to enlarge its territory in Hart and Barren Counties pursuant to KRS 74.110. In both procedures the water commission must petition the "county court" for any proposed territorial changes.
Your question: With whom should such petitions be filed after January 1, 1978? The answer: County judge/executive.
As you mention, on and after January 2, 1978, there will be no "county court" in Kentucky. See § 109, Kentucky Constitution. The district court will then absorb the court function previously exercised by the inferior courts, i.e., quarterly, police, and justices' courts.
S.B. 18 (Ch. 20, Ex. Sess., 1976), § 6, provides that wherever the words "county judge" appear in previously existing statutes, the language shall be changed by the Revisor of Statutes to read "county judge/executive." (Emphasis added). Of course the county judge/executive will be given only executive and administrative powers. He will have, as of January 2, 1978, no judicial powers. The 1976 Acts, Extraordinary Session, on p. 275 (Acts Disposition Table) indicates that S.B. 18 (Ch. 20) § 6, providing for the substitution of "county judge/executive" for "county judge" in previously existing statutes, is not to be codified, since the provision is temporary. Note the compiler's note under KRS 74.115 (Bobbs-Merrill) indicating the substitution of county judge/executive for "county judge", effective January 2, 1978.
It is our opinion that the courts would probably hold that the function of the county judge under the present statutes in KRS Chapter 74 is not, strictly speaking, a judicial function. See § 124, Kentucky Constitution. At the most, the county court's role of entering orders annexing or striking off territory of a water district under KRS 74.110 and 74.115 involves a quasi-judicial function. Note that an aggrieved party may appeal to circuit court.
In Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149 (1942) 150, an issue was whether the statutory power of the State Alcoholic Control Board to conduct hearings and deprive dealers of alcoholic beverages of their licenses if found to be in violation of the ABC law violated §§ 27, 28, and 29 of the Kentucky Constitution relating to separation of the three branches of government. Specifically § 28, Constitution, prohibits persons in one branch from exercising any power belonging to another branch. The Court of Appeals, in sustaining the constitutionality of the legislation, held that there is no constitutional objection to an administrative board ascertaining facts and administering the law; that although it acts in a quasi-judicial capacity, it is not exercising judicial power within the meaning of the constitution forbidding one branch of government from usurping the functions of another.
A Municipal Housing Commission was held, in Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651 (1937) 654, to possess only administrative functions in its discretion as to the type, nature, character, and extent of housing projects to be undertaken under an ordinance, as well as its discretion as to acquisition and control of certain properties. Further, the court pointed out that the General Assembly can confer discretion in the administration of the law itself, although the legislature cannot delegate the discretion as to what a law shall be.
In connection with the annexation of territory by a municipality, Judge Stewart, in City of Prestonsburg v. Comm., Ky., 317 S.W.2d 484 (1958) 487, wrote that in effect the legislature prescribes the facts and conditions under which annexation of territory may take place, and that the only function of the courts in such a proceeding is to determine whether the prescribed facts and conditions exist. He also pointed out that the legislature cannot constitutionally delegate to the courts its policy functions with respect to annexation of territory by a municipality or leave it to the courts to determine as a matter of discretion or judgment whether annexation should take place. Thus in KRS 74.110 and 74.115, the county court really implements the policy function and discretion function as to whether annexation or diminution should take place. The circuit and appellate courts merely determine whether the prescribed facts and conditions exist.
It is our opinion that after January 1, 1978, petitions for extension or reduction of territorial limits of a water district must be filed with the county judge/executive, since the substitution provision of the 1976 Extraordinary Session applies to nonjudicial functions of the county judge.