Request By:
Mr. Dwight Preston
Hardin County Attorney
#30 Public Square
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Certain citizens in your county are interested in the creation of a fire protection district.
The Fiscal Court of Hardin County requests our opinion setting forth the circumstances under which a legal fire protection district may be created, as provided in KRS 75.025. An effort was made in the early 1970's to create such a district, but it was invalidated by the Hardin Circuit Court for lack of following the statutory procedure.
A specific method for creating a fire protection district is provided for in KRS 75.025. It is established by the fiscal court solely, except where the petitioners or the fiscal court appeal to the circuit court for a retrial of the petition, pursuant to KRS 75.025(3).
Under KRS 75.025, the fiscal court of any county, upon petition of seventy-five (75) freeholders of the proposed district, may establish a county fire protection district within the county to protect lives and property in the district. The district can embrace any of the unincorporated portion of the county and any municipal territory in the county wherein no fire department is maintained.
The petition must describe with particularity [such that it can be reasonably identified on the ground] the territory intended to be included in the proposed district. The reasons for creating such a district must be spelled out in the petition.
Since seventy-five "freeholders" must sign the petition, it must be noted that a "freeholder" is one holding title to real estate.
City of Northfield v. Holiday Manor, Inc., Ky., 508 S.W.2d 756 (1974). The failure to get less than seventy-five freehold petitioners on the petition will render it invalid.
It must be understood that a fire protection district does not necessarily have to embrace all of the county outside of a municipality where a fire department is maintained. First, there is no express language in KRS 75.025 indicating that all of the territory outside of a municipality having a fire department must be embraced in the fire district. Secondly, KRS 75.020 expressly provides for the annexation or reduction of territory by a fire protection district established under KRS 75.010 to 75.080. See
Pewee Valley, Etc. v. So. Oldham Fire, Etc., Ky., App., 570 S.W.2d 290 (1978) 291. Thus the territorial limits of an established district may be enlarged or diminished. It stands to reason that if all of the county outside of a city having a fire department must be in the original fire protection district, then it would be impossible to enlarge, later on, the territory of the fire protection district. The law does not require the doing of a vain or useless thing.
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821. All statutes are presumed to be enacted for a purpose; and they should be construed so as to accomplish that purpose, rather than to render them nugatory.
Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962 (1939) 967. Here KRS 75.020 clearly evidences the intent of the legislature to provide for either the enlarging or reducing of the territory of a fire protection district, once it is established.
The fiscal court is required by the statute [KRS 75.025(2)] to give notice of the filing of the petition with that body by publication as provided in KRS Chapter 424. See KRS 424.110, 424.120, 424.130(1)(b), and 424.140(4). Also see
City of St. Matthews v. Beha, Ky., App., 549 S.W.2d 842 (1977). Within thirty (30) days after the publication of notice of the filing of the petition, any resident of the proposed district may file objections, and the fiscal court must set the case for hearing within ten (10) days. If the fiscal court finds that the establishment of such district is reasonably necessary for the public health, convenience, fire protection and comfort of the residents, it shall make an order establishing the district, and designating it by name or number. If the fiscal court does not find the district necessary, it shall dismiss the petition. As we said above, either party [fiscal court or petitioner] may appeal to circuit court for a retrial, etc. KRS 75.025. Since the pourpose of the notice of filing the petition is to inform citizens that within a certain time they have a right to file objections to the petition, the notice, as the court said in City of St. Matthews, above, at page 845, is a form of constructive service of process and unless the statutory form is strictly complied with, the service will be bad.
Your letter raises the question as to whether or not the petitioners may, in their petition, by appropriate language, effectively prevent the trustees of the newly created fire protection district from levying the ad valorem tax provided in KRS 75.040.
The answer is "no". By that statute the trustees of such district are authorized to establish and operate a fire department in such district and to levy an ad valorem tax upon tproperty in the district not exceeding ten cents (10 ) per one hundred dollars ($100) of valuation as assessed for county taxes, for the purpose of defraying the expenses of such establishment, maintenance and operation of said fire department, etc. This section [KRS 75.040] clearly authorizes the board of trustees of the fire protection district to levy such taxes as a separate taxing district under Sections 157 and 158, Kentucky Constitution. The petitioners are not given the authority to prevent the board from exercising its prerogative. Thus if a statement were to appear in the petition that the tax of KRS 75.040 would not be used, such statement would be meaningless, since the petitioners do not have the power to change KRS 75.040. In addition, KRS 75.025(4) emphasizes that "The county fire protection district shall possess all the rights and authority provided by KRS Chapter 75." Among those rights is the power to levy a separate tax under KRS 75.040. The point is that the petitioners have no authority to lessen or dilute in any way the powers and authorities of a properly created fire protection district. See OAG 78-588, copy enclosed, of related interest.