Request By:
Mr. Billy G. Wellman
Major General, KY NG
The Adjutant General
Department of Military Affairs
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question, relating to rescue squads and volunteer fire departments, reads:
"Specifically, does a county judge executive have authority to prohibit the formation of either type of organization, or may he forbid or limit operation by such an organization within the county?"
We assume from your letter that this does not involve disaster and emergency services legislation as set forth in KRS Chapter 39. Cf. KRS 39.415 and 39.416, relating to the county judge/executive's authority in the disaster and emergency situation.
We also assume that such rescue squads and volunteer fire departments would be those operating as Chapter 273 private corporations. We assume that KRS Chapter 75 [volunteer fire department districts] and KRS 65.710 [ambulance service under contract with county] are not involved.
As concerns such rescue squads operating in the unincorporated portion of the county, we are unaware of any authority of the county judge/executive or fiscal court to prohibit or limit such operations, except that the fiscal court, under KRS 67.083(3)(d), has express authority to enact ordinances regarding the reasonable regulation of ambulance service in the unincorporated part of the county.
In the event that a fiscal court decides to issue an ambulance franchise, pursuant to § 164, Kentucky Constitution, it may issue an exclusive franchise only where the public interest demands that competition in that field be restrained or limited. Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967) 80. The fiscal court could decide whether it wants to issue an ambulance franchise, and, if so, it could decide whether one or more franchises would be issued. Where a franchise is issued by the fiscal court, only the holder or holders of a franchise would have the authority to run ambulances up and down county roads, since the fiscal court has exclusive authority over county roads. KRS 67.080 and 67.083. See Irvine Toll Bridge Co. v. Estill Co., 210 Ky. 170, 275 S.W. 634 (1925) 636. A county is delegated the power to grant a franchise (§ 164, County) with reference to a proper subject in their territory of which they were given supervisory jurisdiction by statute, here county roads.
As relates to volunteer fire departments operating in the unincorporated part of the county, KRS Charter 75 would not preempt such operations. We are unaware of any authority of the county judge/executive or fiscal court to prohibit or limit such operations, except that the fiscal court may enact ordinances pertaining to the reasonable regulation of such volunteer fire departments, pursuant to KRS 67.083(3)(u).
It is axiomatic that public officials can only act within the limits of express or necessarily implied powers conferred upon them by law. Clark County Const. Co. v. State Highway Com'n, 248 Ky. 158, 58 S.W.2d 388 (1933) 390.