Request By:
Mr. W. Edward Whitefield
Attorney at Law
Suite 5
109 Hammond Plaza
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth L. Blackford, Assistant Attorney General
In your letter you asked the following questions:
1. Which state law is applicable to the existence of the Hopkinsville Sewerage and Water Works Commission?
2. Is H.B. 637 applicable to the City of Hopkinsville and is H.B. 657 constitutional?
3. Was Ordinance 9-67, which passed in 1967 by the Hopkinsville City Council, in violation of Section 7 of Ordinance 292?
4. Did the passage of the Bond Ordinance of 1974 repeal Ordinance 9-67, which was in conflict with original Ordinances 292 and 341?
Your first question was based upon the fact that Section 9 of Ordinance No. 341, which created the Hopkinsville Sewerage and Water Works Commission (hereinafter the Commission) stated that the Commission was created in accord with Ky. Stat. 3480d-20, now KRS 96.530, and that the Commission was endowed with all the power given it under that statute and upon the fact that KRS 106.020, 96.350 and 94.160 all seem to apply to the acquisition and operation of sewerage and water works systems by cities of the third class.
Ky. Stat. 3480d-20, now 96.530, deals with the means of establishing a city utility commission for the operation of any electric, heat, light and power system acquired by a city. It does not authorize the establishment of a commission to operate a municipally owned sewerage or waterworks system. Therefore, as written, Section 9 of Ordinance 341 is meaningless.
KRS 106.020, 96.350 and 94.160 operate as general grants of authority. Pursuant to these statutes, cities of the third class may acquire separate sewerage and water works systems, or they may join the two together into one project for purposes of original financing.
Prior to the enactment of KRS 96.351 in the 1978 Session there was no express statutory authorization for a city sewerage and waterworks commission. The authority for such commission arose from the City Council's authority to delegate any ministerial, administrative or executive duties to the appropriate officers. City of Mayfield v. Phipps, 363 S.W. 37, 203 Ky. 532 (1924). Because the City of Hopkinsville was acting in a proprietary capacity in acquiring and operating water works and sewerage systems, it had the full right to set up an administrative board for the operation of such systems. Keathley v. Town of Martin, Ky., 246 S.W.2d 152 (1951). In establishing the Commission, the City Council was not operating under statutory constraints and was, therefore, free to pattern the Commission after the commissions established by KRS 96.530.
However, this result is changed by the enactment of KRS 96.351 [formerly designated H.B. 657] in 1978 Acts, ch. 192. That statute leaves it within the discretion of the City Council to determine whether there will be a sewerage and water works commission. But, once the City Council has reached the decision to establish a water works and sewerage commission, the Commission must be established, or, if already in existence, reorganized to conform with the provisions of that statute.
Hopkinsville is a third class city operating under a council form of government. It is located in a county having a population greater than 50,000. Therefore, the Hopkinsville Sewerage and Water Works Commission falls within the purview of KRS 96.351 and must be reorganized to conform therewith.
Your question relating to the constitutionality of H.B. 657 is now moot. The measure has been enacted as KRS 96.351 and is now the law. The constitutionality of KRS 96.351 may only be resolved by court action. Therefore, pursuant to the rules of this office, we are not free to render an opinion on this issue. For your information we have enclosed a copy of a letter written in response to this question before H.B. 657 became the law.
A valid and constitutional statute prevails over any conflicting ordinances. Morgan v. City of Winchester, Clark County, Ky., 411 S.W.2d 682 (1967). Until KRS 96.351 is declared unconstitutional by a court of law, it shall control. All ordinances pertaining to the appointment and operation of the Commission must be brought into compliance therewith. Therefore, your questions relating to the interaction of the various ordinances governing the appointment and operation of the Commission are moot. Nonetheless, we recommend these sources for your information:
(1) On the power of a city council to repeal ordinances - Keathley v. Town of Martin, Ky., 253 S.W.2d 3 (1952; McQuillen, Municipal Corporations, Vol. 6, § 21.10.
(2) On the issue of revival of a repealed ordinance by repeal of the repealing ordinance - KRS 446.100, 446.110; Owensboro v. Board of Trustees, 190 S.W.2d 1005, 301 Ky. 113 (1945).