Request By:
Mr. Rudy C. Bryant
Attorney at Law
125 First Street
Farm Credit Building
Henderson, Kentucky 42420
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested in writing an opinion of this office. The underlying facts and question were stated as follows in your letter:
"In order to expand its facilities, the Henderson County Riverport Authority has attempted to purchase certain real property from Gulf Oil Company. An agreement with Gulf cannot be reached and, therefore, it is necessary for the Authority to condemn approximately three-quarters of an acre of land which belongs to Gulf.
"The question which concerns me is whether or not the Authority should proceed under KRS 65.530(5), which in effect says that, with the consent of the Henderson Fiscal Court the Authority, under its own name, can condemn said property, or must it proceed under KRS 416.560, which requires the Authority to request the Henderson Fiscal Court to institute condemnation proceedings on its behalf.
KRS 65.530(4) provides in part:
"(4) The authority may acquire by contract, lease, purchase, option, gift, condemnation or otherwise any real or personal property, or rights therein, necessary or suitable for establishing, developing, operating or expanding riverports, riverport facilities, water navigation facilities, including spoilage areas for the disposal of materials dredged from river bottoms in an effort to improve the navigability of rivers, reserve storage areas and reserves of bulk materials utilized by the authority or any person acting as the authority's agent or licensee, and industrial parks or sites within the economic environs of the riverport or proposed riverport. "
KRS 65.530(5) reads:
"(5) With the consent of the legislative body of the governmental unit in which the property to be condemned is located, the authority may by resolution, reciting that the property cannot be acquired by purchase or agreement and is needed for riverport, water navigation, or industrial purposes in accordance with the powers set forth in subsection (4) of this section, direct the condemnation of any property. The procedure for condemnation shall conform to the procedure set out in the Eminent Domain Act of Kentucky. "
Thus under the explicit provisions of KRS 65.530(4), the Henderson County Riverport Authority may condemn any real property necessary or suitable for expanding its riverport or riverport facilities. However, considering that the land in question lies in Henderson County (unincorporated portion, we assume), subsection (5) of KRS 65.530 requires that the consent of the Henderson Fiscal Court to the condemnation be obtained prior to the Riverport Authority's directing the condemnation of the subject real estate. And the resolution of the Riverport Authority must correctly recite that the property cannot be acquired by purchase or agreement and is needed for riverport purposes in accordance with KRS 65.530(4).
The procedure for condemnation must conform to the procedure set out in the Eminent Domain Act of Kentucky. KRS 65.530(5).
KRS 416.560(1) provides:
"Notwithstanding any other provision of the law, a department, instrumentality or agency of a city, county or urban-county government having a right of eminent domain under other statutes shall exercise such right only by requesting the governing body of the city, county or urban-county to institute condemnation proceedings on its behalf. If the governing body of the city, county or urban-county agrees, it shall institute such proceedings under KRS 416.570, and all costs involved in the condemnation shall be borne by the department, instrumentality or agency requesting the condemnation. "
We assume the Henderson County Riverport Authority was established, pursuant to KRS 65.520, by the Henderson County Fiscal Court.
KRS 416.560, providing that an instrumentality of a county, needing condemnation, must request the fiscal court to institute condemnation, was enacted in 1976 (1976 Acts, Ch. 140, § 4). However, in the 1980 session of the General Assembly, KRS 65.530, giving a riverport authority the power to institute condemnation itself, was republished and amended in some minor aspect (1980 Acts, Ch 129, § 2). The riverport authority's power to institute condemnation with the assent of the fiscal court is clearly made out in KRS 65.530, while KRS 416.560 purports to require the fiscal court to condemn, if it is done at all.
As it now stands, and assuming arguendo that the port authority is an instrumentality or agency of the county, KRS 416.560(1) and KRS 65.530(4) and (5) are irreconcilable, since the first statute provides that the fiscal court would condemn and the second statute provides the riverport authority may, itself, condemn the property. It is our opinion, under the above assumption that the riverport authority is an instrumentality of the county, that since the legislature republished KRS 65.530 after the enactment of KRS 416.560, it intended, as relates to the specific subject of riverport authorities, to impliedly repeal KRS 416.560(1) to that extent. This construction is based upon the elementary principle of statutory construction that whenever in the statutes on any particular subject there are apparent irreconcilable conflicts, the later statute controls.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400. In addition, KRS 65.530 deals with a specific subject, riverport authorities, while KRS 416.560 deals with the general subject of condemnation. Thus the later and specific statute governs here.
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.
However, in OAG 79-133, copy enclosed, we ruled that when considering the specific powers of contract, borrowing, and financing and other powers of a riverport authority, a riverport authority is not a department, instrumentality or agency of the county or cities in the narrow sense envisioned by KRS 416.560(1). Although the riverport can levy no tax, it is a separate entity acting for its own purposes through defined if limited powers of government. Under the doctrine of associated words, the words "instrumentality" appearing in KRS 416.560(1) must be of the same kind as that suggested in the categories "department" and "agency".
Carson & Co. v. Shelton, 128 Ky. 248, 107 S.W. 793 (1908). All these words, "department", "instrumentality" , or "agency" are presumed, because of the contextual word association, to be of the same class.
CONCLUSION
Based upon the foregoing analysis and authorities, it is our opinion that the Henderson County Riverport Authority, where needed land for expanded riverport facilities cannot be acquired by purchase or agreement, may proceed under KRS 65.530(4) and (5), with the consent of the Henderson County Fiscal Court, under the riverports' own name, to condemn the necessary real estate.