Request By:
Ms. Dora N. Henry
Estill County Clerk
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You present two questions concerning tax exonerations.
Question No. 1:
"Are the tax exonerations to be recorded in the County Clerk's Order book or the County Judge/Executive Order Book?"
KRS 133.130 provides for the relief of a person who has been erroneously charged with a tax upon property not owned by him. Under the statute, if the county judge/executive finds that he was not the owner of the property assessed, he may correct the same by releasing him from the payment of the tax; and the order exonerating the tax shall, upon delivery of a copy thereof to the property valuation administrator, constitute an order to have the property immediately listed against the rightful owner. The county judge/executive must certify his action taken under the statute to the Department of Revenue and the sheriff. This statute is not to be confused with KRS 133.110, providing for correction of clerical errors in an assessment.
This function of the county judge/executive is not judicial in nature. He has no judicial functions. There is no judicial "county court". See § 109, Kentucky Constitution, and KRS 67.710. It is our opinion that his function under the statute [KRS 133.130] is administrative and executive in nature. The statute contains no express provision as to the recording of the order of exoneration. Thus such an order of exoneration, by virtue of the nature of the county judge/executive's function, should be signed and then recorded in the county judge/executive's "Executive Order Book". The vesting of an executive or administrative function in the county judge/executive is in harmony with § 28, Kentucky Constitution, which prohibits persons of one branch of government exercising powers of another branch. His executive order will be based simply on the fact of nonownership of the assessed property, if such is a fact. The function is not of an essential judicial character. At the most it would be only quasi-judicial, which is not sufficient to run afoul of § 28, Constitution. See Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149 (1942), holding that hearings, on the matter of granting or revoking licenses, of the Alcoholic Beverage Control Board are of a quasi-judicial nature, and thus the separation of powers principle of the constitution was not violated.
Every official action of fiscal court must be made a part of the records of the county. Likewise, the executive orders of the county judge/executive, as the chief executive of the county, should be made a part of the county records through filing and recording his executive orders in the county judge/executive's Executive Order Book, maintained by the county clerk.
The answer to Question No. 1 is that the tax exoneration order should be filed and recorded in the county judge/executive's "Executive Order Book", county clerk's office.
Question No. 2:
"If they are to be recorded in the county clerk's order book, does KRS 64.012 require the fiscal court to pay five ($5.00) dollars for each exoneration? "
We have just concluded that the tax exoneration order must be filed and recorded in the county judge/executive's Executive Order Book. Now we shall deal with the question as to the clerk's fee.
KRS 64.012 provides in part that "the county clerk shall receive for the following services the following fees: * * * Filing miscellaneous documents for which no specific fee is set, provided the entire record thereof does not exceed three (3) pages, . . . . $5.00. Exceeding three (3) pages, each additional page . . . $1.50."
Thus the filing and recording of each exoneration by the county clerk entitles the clerk to a fee of $5.00, for the first three pages. The language "miscellaneous documents" is broad enough to cover the exoneration orders. OAG 80-7 is modified accordingly.