Request By:
Mr. Roger W. Hall
Attorney at Law
2813 Louisa Street
Adkins Building
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You represent the Eastern Kentucky Port Authority, an entity comprised of the counties of Lawrence, Boyd, and Greenup in Eastern Kentucky. The purpose of the Authority is to develop, construct and maintain a riverport and attendant facilities on the Ohio River. The EKPA has initiated condemnation action on a tract of land within the city limits of Ashland, Kentucky, and is also in the process of negotiating for the purchase of a piece of property adjacent thereto.
The EKPA has made requests for state funds through the Kentucky Port and River Development Commission. It has also made an application to the Department of the Army, Corps of Engineers, for a permit to construct a riverport. The EKPA's application to the Corps of Engineers appearently indicated that it did not intend to have facilities, or to construct same, for the shipping of coal. As a result, the Corps issued a public notice on October 1, 1980, relating to the application, stating in part that "Coal will not be handled at this facility." (Emphasis added).
The Kentucky Port and River Development Commission has informed us that it issued, on July 7, 1978, to EKPA a public port certification, but with the tacit understanding that EKPA observe any and all applicable statutory sections found in KRS 65.510 to 65.650. See specifically KRS 65.520. The Commission takes the position that the positive exclusion of coal handling from its operations would be discriminatory against coal and would not be in keeping with the Kentucky statutes.
Your question is whether or not the EKPA, as a standing policy, can legally exclude coal handling from its riverport operations? The answer is clearly "no".
KRS 65.610(1) reads:
"(1) The authority may contract with any person or governmental agency for the use of the riverport and riverport facilities. Such contract shall not prevent, restrict or hamper the general use of the riverport by the public." (Emphasis added).
KRS 65.530(2) states that a riverport authority, in fixing rates, charges, etc., shall, among other things, consider the volume and type of business conducted. However, there is nothing in that statute which would authorize a port authority, organized under KRS Chapter 65, to positively and on its own initiative exclude coal handling business as a standing policy.
A riverport authority is a body politic and corporate. It is a public agency, exercising certain functions as a public purpose. KRS 65.520(2). As we just said, KRS 65.610(1) mandates the general use by the public of the riverport. The EKPA contemplates condemnation for a public purpose. In connection with the analogous right of condemnation for highway purposes, it was written in Sturgill v. Commonwealth, Department of Highways, Ky., 384 S.W.2d 89 (1964) 91, that:
"The accepted test is whether the roadway is under the control of public authorities and is open to public use, without regard to private interest or advantage." (Emphasis added).
Public use underlying the right of condemnation was described in Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 104 S.W. 762 (1907) 765:
"It is not the number of people who use the property taken under the law of eminent domain that constitutes the use of it a public one; nor does the fact that the benefits will be in a large measure local enter into the question. In short, according to the generally recognized rule, the length of the public way, the places between which it runs, or the number of people who use it, is not the essential inquiry. The controlling and decisive question is: Have the public the right to its use upon the same terms as the person at whose instance the way was established? If they have, it is a public use; if they have not, it is a private one."
The public function and public purpose nature of a riverport is dealt with by KRS 65.630, which reads:
"The exercise of any power granted to a riverport authority in KRS 65.510 to 65.650 is hereby declared to be a public function; exercised for a public purpose, and as a matter of public necessity, and any real or personal property, or rights therein, acquired by a riverport authority and used in the manner and for the purposes enumerated in KRS 65.510 to 65.650 is hereby declared to be acquired and used for public purposes and as a matter of public necessity."
The New York Court of Appeals upheld legislation permitting a port authority to condemn land and develop a World Trade Center on the ground of its constituting a public purpose. The statute described the World Trade Center as "a facility of commerce . . . for the centralized accommodation of functions, activities and services for or incidental to the transportation of persons, the exchange, buying, selling and transportation of commodities . . . in World Trade and Commerce. " Courtesy Sandwich Shop v. Port of N.Y. Authority, 12 N.Y.2d 379, 240 N.Y.S.2d 1 (1963).
The concept of public purpose was stated, in In Re Advisory Opinion to Governor, R.I., 324 A.2d 641 (1974) 646, to not be a static one. The court said that "It must be flexible and capable of expansion to meet conditions of a complex society that were not within the contemplation of the framers of our constitution." That was written in upholding port authority legislation, the court recognizing that the modern trend of authority is to expand and liberally construe the meaning of "public use" in the context of the right of condemnation.
The Supreme Court of Illinois, in People v. Chicago Railroad Terminal Authority, 14 Ill. 2d 230, 151 N.E.2d 311 (1958) 314, in passing on the validity of the Railroad Terminal Authority Act and the legislative declaration that the Act will serve a public use and public interest, wrote that such was not to be lightly set aside.
It is our opinion, under the clear and literal language of KRS 65.610(1), quoted above, and considering the public function and public purpose of a riverport authority under KRS 65.630, that the EKPA has no authority to exclude on its own initiative the coal handling business as a standing policy. To attempt to exclude would mean a clear and direct violation of the mandate that the port's contracts cannot "prevent, restrict or hamper the general use of the riverport by the public." Indeed, such an attempted exclusion would be discriminatory to the coal industry.
The court wrote, in H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937) 660, that where the court finds the legislative intent clearly evidenced by plain and precise words used in enacting the legislation, the court is bound by the plain and fair meaning of the language used in it.
We conclude that the EKPA cannot legally exclude, as a positive policy, the coal handling business from its riverport function.