Request By:
Mr. Glyeon Lee Ovey, Jr.
Attorney at Law
P.O. Box 216
Eddyville, Kentucky 42038
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your law office represents the Port Authority of Lyon County (hereinafter called the Port), Kentucky, established pursuant to KRS 65.520, et seq., by the joint action of Lyon County and the cities of Eddyville and Kuttawa.
The Port recently attempted to purchase certain tracts of land in Eddyville contiguous with its facility on Lake Barkley. However, the private negotiations were unsuccessful.
KRS 65.530(5) reads:
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"(5) With the consent of the legislative body of the governmental unit in which the property to be condemned is located, the authority may by resolution, reciting that the property cannot be acquired by purchase or agreement and is needed for riverport, water navigation, or industrial purposes in accordance with the powers set forth in subsection (4) of this section, direct the condemnation of any property. The procedure for condemnation shall conform to the procedure set out in the Eminent Domain Act of Kentucky."
KRS 416.560(1) reads:
"(1) Notwithstanding any other provision of the law, a department, instrumentality or agency of city, county or urban-county government having a right of eminent domain under other statutes shall exercise such right only by requesting the governing body of the city, county or urban-county to institute condemnation proceedings on its behalf. If the governing body of the city, county or urban-county agrees, it shall institute such proceedings under KRS 416.570, and all costs involved in the condemnation shall be borne by the department, instrumentality or agency requesting the condemnation. "
Your question is whether the Port is an agency or instrumentality of the governing bodies who created the Port such that under KRS 416.560(1) the Port must get the consent of such governmental units and request such governmental units to institute condemnation proceedings?
The Riverport Authority is a public or governmental agency or corporation with specifically assigned duties and powers relating to clearly defined public purposes. As a body politic and corporate it may in its corporate name sue and be sued, contract and be contracted with and do all things reasonable or necessary to effectively carry out the powers and duties prescribed by KRS 65.510 to 65.650. Acting within the frame of its statutory powers the Port as a public corporation is autonomous in nature. KRS 65.520(2). Title to property acquired by the Port Authority shall vest in the authority. KRS 65.620. The authority has the power to issue revenue bonds under KRS 58.010 to 58.140 and KRS 65.600. The authority may borrow money from any source "on its own credit" in anticipation of revenue coming in to the authority. (Emphasis added). KRS 65.590.
Although the Port can levy no tax, it is a separate entity acting for its own purposes and possessing defined, though limited powers of government. Under the doctrine of associated words the words "instrumentality" appearing in KRS 416.560(1) must be of the same kind as that suggested in the categories "department" and "agency". Carson & Co. v. Shelton, 128 Ky. 248, 107 S.W. 793 (1908). All these words, "department", "instrumentality" or "agency", are presumed, because of the contextual word association, to be of the same class.
When considering the specific powers of contract, borrowing, and financing and other powers of the Port, and the autonomy of the Port, it is our opinion that Port is not a department, instrumentality or agency of the county and cities in the narrow sense envisioned by KRS 416.560(1). It is not a child of the local governmental units, although they may contribute to the Port's financing. It is its own "man". Thus the Port, with the consent of the City of Eddyville in which the property to be condemned is located, may by resolution direct the condemnation of the property where the property cannot be acquired by purchase or agreement and is needed for the Port's statutory purposes. The Port can then initiate condemnation proceedings on its own behalf, since KRS 416.560(1) has no application. This analysis is in harmony with the autonomous nature of the Port.
It is not necessary, under the above analysis, to answer another question relating to which local governmental unit will initiate condemnation.