Request By:
Hon. George L. Atkins
Auditor
Room 170
Capital Annex Building
Frankfort, Ky. 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Deputy Attorney General
You have requested an opinion as to whether the Kentucky State Racing Commission and the Kentucky Harness Racing Commission may finance the initial expense of an equine testing laboratory by a transfer from general funds. The question arises because of the provision in KRS 230.240(1) and its counterpart KRS 230.660(1) which states:
"The expense of the laboratory or other testing processes, whether furnished by contract or otherwise, together with all supplies and equipment used in connection therewith, shall be paid by the various associations licensed . . (by the respective commissions) . . in such manner and in such proportions as the commission may be rule provide."
It is our opinion that this provision relating to the funding of the testing laboratory is directory, not mandatory. Being a directory provision, it only suggests a method of accomplishing the legislative purpose and does not limit the commissions' exercise of authority to that one method. Therefore, the commissions' use of general funds, rather than association fees, to finance the initial expenses of the testing laboratory is not violative of the statute.
Whether a statutory provision is mandatory or directory is a question of legislative intent. The intent is not determined by form alone but by looking at the statute as a whole, its nature, its object, and the consequences which would result from construing it one way or the other. Even where a statute uses the word "shall," as does the funding provision of KRS 230.240 and KRS 230.660, such language will be considered directory where other factors indicate that to be the legislative intent, Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884, 886 (1936).
Our opinion that the Kentucky legislature intended the funding provision to be directory is based on the following circumstances:
1. If the language is mandatory, requiring compliance, the provision was meaningless when KRS 230.240 was first enacted in 1960. At that time, the only source of funds for the Kentucky Racing Commission was assessments levied against the association which it licensed. A provision limiting the source of funds for a laboratory to these assessments would have been unnecessary and meaningless. There was no other source of funds. If, on the other hand, the provision is seen as a grant of authority to fund the laboratory by assessments on the associations the provision is no longer meaningless. In construing a statute, it must be presumed that the legislature intended something by what it attempted to do. Grieb v. National Bond & Investment Co., 264 Ky. 289, 94 S.W.2d 612 (1936). If we are to presume that the provision had meaning, we must presume that the funding provision was intended to be directory, granting authority but not limiting it.
2. If the language is mandatory, later legislative appropriations to the Kentucky Racing Commission for the Regulation of Thoroughbred Racing could not be used at all. Starting in 1974, the legislature has appropriated funds for the regulation of thoroughbred racing, a program which "supervises all phases of thoroughbred racing for the protection of the wagering public." Yet KRS 230.240(1) and (2) provide that not only the expenses of a testing laboratory but also the compensation of any commission employes at the races, such as stewards, supervisors, veterinarians, inspectors, accountants, guards, and others, "shall be paid" by the associations (licensers) of the Commission. If these statutory provisions are a requirement that only association monies be used for testing and employee compensation, there is no way in which to use the legislative appropriation for the regulation of thoroughbred racing. The legislature itself had to regard these provisions as merely directory when making that appropriation. Further, since the appropriation of 1974 was subsequent to the enactment of KRS 230.240(1) in 1960 it may be said to be a legislative gloss giving the proper interpretation of a possibly ambiguous provision in that statute.
3. The legislature was aware of the language of KRS 230.240(1) when it made the appropriation for the regulation of thoroughbred racing. At the same 1974 session in which the legislature first appropriated funds for the Kentucky State Racing Commission and the Kentucky Harness Racing Commission, it adopted several statutes creating the Harness Racing Commission. KRS 230.610 to 230.760. KRS 230.660(1) repeats word for word KRS 230.240(1) including the provision that the expenses of a laboratory "shall be paid" by the associations. If the appropriation and statute passed in the same session are to be consistent, the statute must be directory only.
4. If only association funds may be used for the initial costs of a testing laboratory, it would take some time before enough fees could be accumulated to finance the laboratory. The purpose of the statute as a whole is better served by a directory rather than a mandatory provision.
Looking at the statutes as a whole and in conjunction with other legislative acts, we feel that the legislature must have intended KRS 230.240 and KRS 230.660 to be directory rather than mandatory. An equine testing laboratory may be funded by monies from the general fund as well as by association fees.