Request By:
Mark E. Gormley, Esq.
Woodford County Attorney
Third Floor, Courthouse
Versailles, Kentucky 40383
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter concerning the election of the trustees of a fire protection district who represent the property owners and who may vote in such an election. KRS 75.031 (1) provides in part as follows:
". . . Two (2) members of the board of trustees shall be property owners who own and reside in the property in the district who are not active volunteer fire fighters and shall be elected by such property owners. . . ."
You refer to OAG 74-782, copy enclosed, and seek a clarification of that opinion. In Woodford County a fire tax is not levied on automobiles and other personal property but in your opinion such property is subject to the tax authorized by KRS 75.040. If your conclusion is correct, you ask whether persons who are subject to the tax are eligible voters even though a tax on personal property has never been levied.
In OAG 74-782 we expressed the opinion that although the term "property owners" is not defined in KRS 75.031, it refers to those persons who own not only real property but also personal property that is subject to the tax enacted pursuant to KRS 75.040. We concluded in that opinion, citing OAG 69-340, copy enclosed, as follows:
"Therefore, on the basis of the fact that both real and personal property is subject to the fire protection district tax, any person owning real or personal property subject to the tax would be qualified to vote for the two members of the board of trustees in question. This would of course include a person who owns an automobile since it is considered personal property subject to taxation."
Two previous opinions of this office have stated that the tax provided for in the statute (KRS 75.040) applies to all property, both real and personal, in the district and, therefore, under the statute (KRS 75.031) any person owning real or personal property in the district subject to the tax and who reside within the district would be qualified to vote for the two members of the board of trustees in question. Under our interpretation of the statutes involved, the owners of personal property subject to the tax and who reside within the district are "property owners" and entitled to vote regardless of whether the district to which you refer has actually levied a tax on personal property.
Your next question asks whether a fire fighter who owns taxable property in the district may vote in both elections; the election for the trustees representing the fire fighters and the election for the trustees representing the property owners.
The answer to that question is "No" as the property-owning fire fighter cannot vote in the election for the trustees representing the property owners. KRS 75.031 (1) states in part that the property owners who own and reside in the property in the district and who are eligible for election as trustees and to vote for such trustees, must not be active volunteer fire fighters. See OAG 77-706, copy enclosed.
Another question asks whether a person can vote who resides within the corporate limits of Versailles or Midway but owns taxable property within the district.
The answer to that question is "No" if the person's legal residence is outside the district because KRS 75.031 (1) requires that the voting property owners not only must own property within the district but they also must reside within the district. If the property owners are not legal residents of the district they cannot vote. See OAG 77-575, copy enclosed, at page two, for a discussion of legal residence.
Another question asks whether all persons in a household may vote if, for example, the property is recorded in the name of the father only and he has a wife and several children.
As indicated previously, property ownership is required of all those persons desiring to vote in a fire district election involving the election of the property-owning trustees of the district. If, in a particular household, all the property is recorded in the father's name only, then the wife and children would probably be precluded from voting since they would have an extremely difficult time establishing that they legally own property in the district subject to the fire district tax.
Your last two questions ask whether a person must be a registered voter to vote in a fire district election and, if not, must a person be eighteen years of age or older.
KRS 75.031 (1), in dealing with the election of the trustees to represent the property owners, requires that persons voting in such an election own property in the district and reside within the district. There is no reference to "voters" or "registered voters" or that those persons possessing the requirements of property ownership and residency must be registered voters. In OAG 73-635, copy enclosed, we said that the election mentioned in KRS 75.031 (2) is purely local in character, to be carried out as the statute requires, and does not come under regular or general election laws.
As you know, KRS 2.015 provides that for most purposes persons of the age of eighteen years are of the age of majority in this Commonwealth. Furthermore, Section 145 of the Kentucky Constitution provides that every citizen of the age of eighteen shall have the right to vote. Thus, with regard to elections generally, eighteen is the age at which a person attains the right to vote. The only exception where a seventeen-year-old may vote is in the primary election which is merely a nominating procedure and not an election within the meaning of the constitutional and statutory provisions. See OAG 77-209, copy enclosed.
Also, in Nunnelly v. Doty, 210 Ky. 642, 276 S.W. 152 (1925), the Court said an infant cannot vote.
While KRS 75.031 does not deal with the required age of persons voting in the elections set forth therein and while we cannot find any reported case dealing with the subject, it is our opinion that a person should be at least eighteen years old to be eligible to vote in fire district elections.