Request By:
Hon. William M. Lear, Jr.
Commissioner of Law
Lexington-Fayette Urban
County Government
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Joseph R. Johnson, Assistant Attorney General
In your letter dated October 11, 1979, you advised this office of a problem regarding the preparation of ad valorem tax billings for the current fiscal year by the Fayette County Clerk. Since the Fayette County School Board has adopted a tax rate which exceeds the allowable rate under House Bill 44, a recall vote has been scheduled for early January. However, the state and urban county government taxes have not exceeded the allowable rate. Since KRS 160.500(3) provides that the school tax is to be included on the regular tax bill along with the state and urban county taxes, the delay until late January in sending out the urban county tax bills would cause extreme financial hardships to the Lexington-Fayette Urban County Government. Therefore, you have raised two (2) questions:
(1) May one billing be made for the state and urban county government taxes and a second billing for the school fund taxes?
(2) If so, is the Fayette County Clerk entitled to be paid twice for preparing two (2) separate billings?
KRS 160.500(3) states in part as follows:
"The clerk shall include all school taxes on the regular tax bills furnished the tax collector. . . ."
The problem revolves around the meaning of the word "shall" and whether by the use of this term, the legislature intended that the school tax must invariably appear on the same tax bill as the state and urban county government taxes.
In the case of Stanfield v. Willoughby, Ky., 286 S.W.2d 908 (1956), Kentucky's highest court defined the word "shall" as follows:
"In its ordinary meaning 'shall' has a compulsory, imperative, or mandatory meaning . . . When the word is employed in a statute, however, its ultimate significance is to be ascertained from a consideration of the legislative intent and in arriving at that intent the act or statute involved must be examined."
We note that the statute under consideration herein is addressed to a public official, to wit: the county clerk. Courts generally hold that the word "shall" is mandatory, particularly when the word is addressed to a public official. People v. Nicholls, Ill., 359 N.E.2d 1095, 1099 (1977); Pelzer v. City of Bellevue, Neb., 251 N.W.2d 662, 665 (1977). When addressed to a public official, the word "shall" in a statute is ordinarily mandatory, excluding the idea of permissiveness or discretion. Schmidt v. Abbott, Iowa, 156 N.W.2d 649, 651 (1968).
We further note that KRS 133.240(1) provides that the county clerk shall be compensated only once for preparing a tax bill for each individual taxpayer. KRS 64.410(2) mandates that no public officer shall demand or receive for his services any greater fee than is allowed by law or any fee for services rendered when the law has not fixed a compensation therefor.
From an examination of the applicable statutory provisions and case law, the definition of the word "shall" as used in this statute is mandatory and the county clerk may not break the tax bill down into two (2) installments. The bill for the school fund taxes must appear on the regular tax bill along with the billings for the state tax and urban county government taxes. See also KRS 446.010(29).
We are forwarding a copy of this letter to the Legislative Research Commission so as to apprise that agency of the problem discussed herein.