Request By:
Mr. Donald R. Erler
Assistant County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In the collection of certain delinquent real estate taxes, prior to the amendment of KRS 134.500(3) in 1976 (Ex. Sess.), Ch. 17, § 39, the county attorney was provided a fee of twenty per cent (20%) of the amount due each taxing unit where he performed his designated statutory duties in connection therewith.
However, the 1976 (Ex. Sess.) legislation mentioned above deleted the county attorney's tax commission provisions as found in KRS 134.500(3), although his old statutory duties in connection with such collection of delinquent taxes was continued. See H.B. 17 of 1976 Acts (Ex. Sess.), Ch. 17, § 39. In other words, he was required to do the work, but he was not to get paid for his work. Of course this tax collection work is wholly unrelated to his prosecutorial duties with the state court system. Further, current legislation does not guarantee, by way of salaries from the state and county, that the county attorney shall receive the annual rubber dollar maximum involved in KRS 15.765.
House Bill 718 was passed in the 1978 session, Section 4 of which amended KRS 134.500 and expressly restored the 20% commission of the county attorney. In fact, Section 4 of H.B. 718 is virtually the language of the old KRS 134.500(3) prior to the amending 1976 (Ex. Sess.) legislation.
Your question is whether the restored county attorney fee of 20% of delinquent taxes collected applies retroactive to January 1, 1978, such that there is no hiatus period in connection with this fee or commission. The answer is "yes".
H.B. 718 becomes technically effective on June 17, 1978, as ordinary legislation under the 90-day rule established in § 55, Kentucky Constitution.
Keeping in mind that KRS 446.080(3) provides that no statute shall be construed to be retroactive unless expressly so declared, it is our opinion that under the explicit language of H.B. 718, Section 4(3), which restored the old county attorney fee of KRS 134.500(3), the legislature intended to make the attorney fee provision retroactive to January 1, 1978, [when the deleting provision of the Extraordinary Session became effective] . Such language indicates that the intent was to restore the fee or commission as if no intervening legislative action had ever been taken. That amounts to an express declaration of retroactivity. We do not believe that the retroactivity clause of KRS 446.080(3) necessarily requires the magic word "retroactive" . It is sufficient if retroactivity is intended from the express language. And the latter is precisely the case here.
In
Taylor v. Asher, Ky., 317 S.W.2d 895 (1958) 897, the court wrote that "it is a principle of statutory construction that retroactive effect or retrospective application of an act will not be given or made unless the intent that it should be is clearly expressed or necessarily implied." Here we are of the opinion that the language used in H.B. 718 clearly expresses the intent that retroactive effect be given. In the total context of H.B. 718 we cannot read into the bill any intent to provide for this hiatus of some five and one-half months. Otherwise, it would be like playing the fiddle while Rome burns. A simple explanation for the inadvertency of the 1976 Special Session deletion of the fee is that in considering the new role of the county attorney [the state prosecutorial role was added and placed on a salary basis] the legislature momentarily failed to think of the county attorney as a fee officer.
We therefore agree with your position that H.B. 718 was intended to correct an error or oversight of the Extraordinary Session of 1976, and thus no gap in this fee law was intended.