Request By:
Mr. Joseph R. Rubin
Attorney at Law
Suite 300 Fireside Building
209 South Fifth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of Pike County, Kentucky, you request our opinion as to KRS 67.083(3)(j), and particularly whether such statute is now construed to include the words: "Facilitating the construction of new housing. "
A more specific question is whether the amendment of KRS 67.083 as contained in H.B. 233 in the 1980 regular session, adopted for the purpose of dealing with onsite sewage disposal systems, had the effect of deleting such words relating to new housing from KRS 67.083(3)(j).
Pike County desires to proceed under the authority of KRS 67.083(3)(j) as originally enacted.
In 1978 (Ch. 118, Section 3, 1978 regular session) KRS 67.083 (Home Rule statute for counties) was amended such that KRS 67.083(3)(j) in part provided in essence that any fiscal court may enact ordinances, issue regulations, levy taxes, issue bonds in performance of certain enumerated public functions: "Facilitating the construction of new housing. " (Emphasis added).
As you know, we concluded in OAG 79-229 that under KRS 67.083(3)(j), a county may constitutionally issue residential mortgage revenue bonds relating to the construction of new housing.
The 1979 Extraordinary Session of the General Assembly (Ch. 22, § 1) amended KRS 67.083 by deleting the words "facilitating the construction of new housing" from subsection (3)(j).
In the 1980 regular session the legislature enacted two bills relating to onsite sewage disposal: H.B. 232 (Ch. 148) and H.B. 233 (Ch. 149). Sections 1, 2, and 3 of H.B. 233 amended KRS 94.160 (cities), 220.030 (sanitation districts) and 67.083 (county home rule) in only one particular. It simply added that such districts, counties and cities could provide for the management of onsite sewage disposal systems. No other express or explicit change was effected. The two house bills became effective on July 15, 1980.
However, cutting across these legislative lines of development was the case of
Jones v. County of Laurel, Ky., App., 600 S.W.2d 489, which was handed down on March 21, 1980. The Supreme Court of Kentucky denied discretionary review on July 8, 1980. The Jones case dealt with the issue as to whether or not H.B. 68, enacted in the 1979 Extraordinary Session, and which amended KRS 67.083(3)(j) by deleting the words "Facilitating the construction of new housing" , was constitutional. The Court of Appeals held that it was not constitutional for the simple reason that it was not responsive or germane to the Governor's call for the Extraordinary Session. The court said that § 80 of the Kentucky Constitution expressly prohibits consideration of subjects not contained in the Governor's proclamation calling an extraordinary session. Any legislative action taken during the extraordinary session which is not a subject included in the subjects specified in the proclamation calling the session is void. Thus the court held H.B. 68 to be unconstitutional and void.
Concerning the 1979 deletion of the words "Facilitating the construction of new housing" , the law is well established in Kentucky that "Where a law amending or repealing a prior law is held to be void, the prior law remains in full force and effect as originally passed." (Emphasis added).
Ward v. Commonwealth, 228 Ky. 468, 15 S.W.2d 276 (1929) 277. See the later case of
Commonwealth v. O'Harrah, Ky., 262 S.W.2d 385 (1953) 390, holding that the statute before the unconstitutional amendment is in force.
Thus the effect of Ward v. Commonwealth, above, is that the unconstitutional amendment is judicially viewed as if it never was enacted, and the statute as worded before the unconstitutional amendment controls.
Commonwealth v. Malco-Memphis Theatres, 293 Ky. 531, 169 S.W.2d 596 (1943). This judicial principle governs, regardless of the precise wording contained in present statute publications.
Now, coming to the 1980 regular session and the enactment of H.B. 232 and 233, it is obvious from a careful reading thereof that the only change intended in KRS 67.083(3) was that pertaining to subsection (3)(r), adding the words "including management of onsite sewage disposal systems". (Emphasis added). It is our opinion that the mere republication of all of KRS 67.083 in no way was intended to treat the historical matter of "Facilitating the construction of new housing" , since the only concrete expression of intended legislative action related exclusively to the onsite sewage disposal systems matter. In addition, even if it were argued that the republication of the "absence of the words 'Faciliting the construction of new housing' " was intended to deal with that subject as a form of eliminating the term as to new housing, it defies human logic, since the legislature had no way of knowing at the time of the enactment of H.B. 233 that the courts would hold H.B. 68 unconstitutional. The only concrete thing the legislature had before it was simply the action of the 1979 Extraordinary Session by which the words relating to new housing were deleted. Thus the republication can only be viewed in terms of the prior attempted deletion action of the 1979 session. Moreover, KRS 446.145 provides that brackets must be employed in amendatory legislation where it is the intent to remove language of prior enacted legislation. House Bill 233 contains no brackets as relates to KRS 67.083(3)(j). Thus the legislature has by the clearly expressed policy of KRS 446.145 declared that an intent to eliminate statutory language must be done in a precise manner, not some indirect or vaporous manner, calculated to put the members of the General Assembly, as well as the affected public, on notice as to just what changes in a piece of legislation are being effected. Thus H.B. 233 merely republished the statute, KRS 67.083, as it existed after the 1979 deletion. It merely carried forward the effect of the deletion, which the courts later ruled was unconstitutional and void. No other intent can be logically deduced.
While the court in
Grieb v. Jefferson County Fiscal Court, 249 Ky. 659, 61 S.W.2d 285 (1933) said that the reenactment of a statute is tantamount to an express repeal of the original requirement omitted from the statute as reenacted, it is our view that Grieb is not controlling here for two reasons: (1) The enactment of KRS 446.145, requiring brackets where language in a statute is to be eliminated, came about precisely to avoid the judicial construction doctrine of Grieb v. Jefferson County Fiscal Court, above. (2) The law is well established that the courts look with disfavor on repeals or amendments by implication, and recognizes them only when they are clear and when it is necessary in order to carry out the obvious intent of the legislature. See
Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 612.
CONCLUSION
Based upon the foregoing analysis and authorities, it is our opinion that the words "Facilitating the construction of new housing" must be construed, in view of Jones v. County of Laurel, above, and the cases on the legal effect of a void and unconstitutional act, as being legally contained in the current KRS 67.083(3)(j). Further, it is our opinion that the amendment of KRS 67.083 by H.B. 233 (1980), adopted solely for the purpose of dealing with onsite sewage disposal system, in no way can be validly construed to have the effect of deleting the words "Facilitating the construction of new housing" from KRS 67.083(3)(j).