Request By:
Ed W. Hancock, Esq.
Deputy Secretary for Legal Affairs
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter seeking the opinion of this office as to the constitutionality of House Bill 514, relating to unincorporated urban places, which was enacted by the regular session of the 1978 Kentucky General Assembly.
Fairdale, which is unincorporated, does not qualify as an "unincorporated urban place" as that term is defined in the municipal aid provisions of KRS 177.365 to 177.368 (Gasoline Tax Revenue) since it is not designated as such by the 1970 decennial census of the United States Bureau of the Census. In an attempt to qualify Fairdale as an "unincorporated urban place" the General Assembly enacted H.B. 514.
KRS 177.366(1) provides in part that "unincorporated urban places" means an area outside of incorporated cities which area has a population of 2,500 or more as shown by the most recent decennial census of the United States Bureau of the Census, and all populations shall be determined by the most recent decennial census of the United States. You state that the area encompassed by H.B. 514 includes the fifth class city of Minor Lane Heights (population 2217) and the sixth class cities of Hollyvilla (population 907) and South Park View (population 287). H.B. 514 purports to make Fairdale an "unincorporated urban place" without having to demonstrate that the area contains the population required for such a designation. You further state that H.B. 514 is inaccurate in the estimated distance of 4000 feet southwardly along the west right-of-way line of the Louisville and Nashville Railroad to the Outer Loop. The correct distance is about 12,000 feet but since the described boundary is well established and the points are specific, this particular matter probably would not affect the validity of the bill.
H.B. 514 provides in part that "The Fairdale area of Jefferson County is an 'unincorporated urban place' within the meaning of KRS 177.366, 177.367 and 177.368." In your opinion since the General Assembly could have passed a general law applying to all areas in the same circumstances as Fairdale, it is doubtful that the bill is constitutional as it is probably special legislation prohibited by Sections 59 (29) and 60 of the Kentucky Constitution. Furthermore, KRS 177.365(3) states that an "unincorporated urban place" must be described as such by the bureau of census tracts, and KRS 177.366(1) requires a population of 2,500 outside the incorporated cities as shown by the most recent federal decennial census. Since Fairdale, under H.B. 514, need not demonstrate the existence of the required population, you state this is special legislation on its behalf in violation of the state's constitution.
Section 59 of the Kentucky Constitution sets forth the subjects and purposes concerning which the General Assembly shall not pass local or special acts. Subsection 29 thereof provides, "In all other cases where a general law can be made applicable, no special law shall be enacted." Section 60 of the Kentucky Constitution provides in part as follows:
"The general assembly shall not indirectly enact any special or local act by the repeal in part of a general act, or by exempting from the operation of a general act any city, town, district or county; but laws repealing local or special acts may be enacted. No law shall be enacted granting powers or privileges in any case where the granting of such powers or privileges shall have been provided for by a general law, nor where the courts have jurisdiction to grant the same or to give the relief asked for. . . ."
In
Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496, 498 (1971), the Court discussed a local act and a special act:
"A local act is one confined to territorial limits other than that of the whole state or one which is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others. . . ."
In
Ravitz v. Steurele, 257 Ky. 108, 77 S.W.2d 360, 364 (1934), the Court defined special legislation as follows:
"Within the meaning of our Constitution, '"special legislation" is such as relates either to particular persons, places, or things, or to persons, places, or things, which, though not particularized, are separated by any method of selection from the whole class to which the law might, but for such legislation, be applied.'"
The Court, in
Ravitz v. Steurele, supra, at page 364 of its opinion, quoted from another source in connection with general and special or class legislation:
"'Whether or not an act is class legislation, or whether or not it is a general or special law depends fundamentally upon a question of classification. Where an act is assailed as special or class legislation, the attack is necessarily based upon the claim that there are persons or things similarly situated to those embraced and which by terms of the act are excluded from its operation. The question then is whether the persons or things embraced by the act form by themselves, a proper and legitimate class with reference to the purpose of the act. It is agreed on all hands that the constitution does not forbid a reasonable and proper classification of the objects of legislation. The question is, what is reasonable and proper in the premises?'"
In connection with special legislation, the
Court, in Commonwealth v. City of Grayson, 278 Ky. 450, 128 S.W.2d 770 (1939), held invalid, as special legislation in violation of Section 59 (29) of the state constitution, a statute requiring the Department of Highways to ascertain the cost of constructing a highway through the City of Grayson and to certify its findings to the state auditor, who was to draw a warrant payable to that city for the sum certified.
In summary, the provisions of House Bill 514, enacted by the regular session of the 1978 Kentucky General Assembly, are applicable only to the Fairdale area of Jefferson County and purport to designate that specific area as an "unincorporated urban place" within the meaning of KRS 177.365 to 177.368, thereby by-passing the statutory procedure set forth in those provisions which are applicable to all other areas seeking such designation. It is, therefore, our opinion that H.B. 514 is probably unconstitutional as being in violation of sections 59 (29) and 60 of the Kentucky Constitution.