Request By:
Mr. Michael R. Carrell
President
Board of Aldermen
City of Louisville
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The City of Louisville and the County of Jefferson have been investigating the possibility of creating an emergency ambulance service district for the County of Jefferson under procedures established in KRS 108.080 through 108.180. A question has arisen as to the special ad valorem tax authorized under that section.
Your question reads:
"If a county creates an emergency ambulance service district under provisions of KRS 108.090 through 108.180, either through a referendum under KRS 108.100 or action of the fiscal court under KRS 108.105, is the special ad valorem tax for the emergency ambulance service district included in the computation of the county tax levy under KRS 68.245?"
Where the district is created pursuant to KRS 108.100 [referendum] , under subsection (3) thereof, the district is characterized as a special taxing district within the meaning of § 157 of the Kentucky Constitution. Where the district is created by the city and county pursuant to KRS 108.105, the district would be a special taxing district within the meaning of § 157 of the Constitution. While the latter statute does not mention the phrase "a taxing district within the meaning of § 157," KRS 108.100 and 108.105 must be read together under the doctrine of pari materia (same subject matter). There is no good reason why the difference in method of creation should make any difference as to the district's status as a special taxing district under § 157. See Economy Optical Company v. Kentucky Board of Optometric Examiners, Ky., 310 S.W.2d 783 (1958), stressing that legislation on the same subject should be construed together so as to harmonize and give proper effect to both.
KRS 108.105 makes it clear that the statute deals only with an alternate method of creation, but the product is the same, as described in KRS 108.100. Note that the feature of "not to exceed 10 cents on each 100 dollars" is identical in KRS 108.100(1) and 108.105(3). In addition, KRS 108.105 provides that the district tax shall be collected in the same manner as provided in KRS 108.080 to 108.180. Elsewhere in KRS 108.105 it is provided that other matters with regard to the operation and management of the district shall be in accordance with KRS 108.080 to 108.180, etc.
A special taxing district within the meaning of § 157, Constitution, has a basic autonomy. It has its own tax, which is entirely separate from and independent of the ad valorem taxes levied by the County or levied by the City. The affairs of the district are controlled and managed by the district board, KRS 108.110. All such district ad valorem taxes collected shall be turned over to the district board, KRS 108.100(4). Such ad valorem tax shall be in addition to all other ad valorem taxes. See the detailed powers of the district board listed in KRS 108.140. Cf. Lowery v. County of Jefferson, Ky., 458 S.W.2d 168 (1970), involving County Community improvement districts, pursuant to KRS 107.310 to 107.500. There the statutes do not characterize the district as a special taxing district under § 157, Constitution. See KRS 107.350 and 107.320.
There are other distinguishing points in comparing KRS Chapter 107 [Community Improvement District] and Chapter 108 [Ambulance Service District]: (1) The fiscal court levies the ad valorem tax (KRS 107.360); (2) projects are determined by the voters; (3) the fiscal court of the county has the power of ultimate decision on every question of importance; and it cannot be required to levy a tax in any year except to the extent necessary to amortize general obligation bonds (KRS 107.360, 107.370, 107.460, and 107.490); (4) tax money obtained by the district as a county tax must be expended only for projects that constitute valid county purposes, and the tax so levied must be counted as part of the regular tax rate of the county.
For reasons given above, it is our opinion that an ambulance service district tax, where the district is created by referendum or by local government, is not to be included in the County's ad valorem tax levy under KRS 68.245.
Where the proposed tax rate of the district created by referendum under KRS 108.100 does not exceed the specific tax rate voted on [rate cannot exceed 10 cents on each 100 dollars of property upon creation of the district], then KRS 132.023, relating to tax limitations, would not apply. KRS 132.023 imposes limitations, concerning tax rates and revenue derived therefrom, on special taxing districts.
A special taxing district ordinarily cannot, in connection with its tax rate, exceed the "compensating tax rate" defined in KRS 132.010(6) [in the main, excluding new and personal property, holding tax revenue to the preceding year's level], without holding a public hearing, etc. But in any event, the district cannot levy a tax rate exceeding four percent (4%) above the compensating tax rate except upon a vote of the people, as provided in KRS 132.017. Thus, as we have said, the ambulance district, created under KRS 108.100, may levy a tax rate that does not exceed the rate voted on in creating the district, without being subject to the special tax limitations of KRS 132.023. Such a rate is a voted levy. The Court, in Raque v. City of Louisville, Ky., 402 S.W.2d 697 (1966), reiterated the principle that the people, where they are sufficiently and precisely informed as to what they are voting on, may vote a tax levy which is even in excess of the maximum rate specified in § 157 of the Kentucky Constitution. A fortiori, the people can vote an obligation and tax levy which exceeds statutory limitations. There is no way the legislature can prevent the people from voting obligations which exceed the maximum rates set out in § 157. Of course, § 158, Constitution, imposes an absolute maximum rate, except for a well spelled out case of emergency, involving the public health or safety.
While the old Court of Appeals, in City of Ashland v. Webb, Ky., 470 S.W.2d 604 (1971) 605, held that the legislature has the power to fix city tax rate limits below the maximums specified in § 157 of the Kentucky Constitution, that power can in no way militate against the power of the people to vote a tax levy which exceeds the maximums of § 157 of the Constitution. See City of Marion v. Haynes, 157 Ky., 687, 164 S.W.79 (1914) 81.
Where the ambulance district is created pursuant to KRS 108.105, the statutory tax rate limits of KRS 132.023 would apply to the special district, since no voted levy is involved.