Request By:
Mr. Clifford F. Haley, Jr.
Bullitt County Judge Executive
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Steven L. Beshear, Attorney General; BY: Charles W. Runyan, Assistant Deputy Attorney General
On June 13, 1978, the Bullitt Fiscal Court enacted a general occupational or license tax ordinance, effective July 1, 1978.
In reading KRS 68.197, you wonder whether the ordinance is valid. No vote of the people was taken.
Ad valorem and license taxes are the only kinds of taxes that a county may levy. See §§ 171 and 181, Kentucky Constitution, George Wiedemann Brewing Co. v. City of Newport, Ky., 321 S.W.2d 404 (1959), and Driver v. Sawyer, Ky., 392 S.W.2d 52 (1965).
KRS 68.197 treats the subject of license fees imposed by a fiscal court in counties having a population of thirty thousand (30,000) or more. However, in those applicable counties, KRS 68.197(3) requires such fiscal court imposing license fees under that statute to submit the question of the license fee to the voters of the county at the next general election. If the license fee is rejected by a majority of those voting in the election, the license fee shall be repealed effective December 31 of the same year.
Obviously, the crucial question here is: What was the population of Bullitt County on June 13, 1978, or nearly so as indicated by the latest federal census.
The official census for the year 1970, U.S. Department of Commerce, Bureau of the Census, indicates that the population of Bullitt County in 1970 was 26,090. The federal census of counties is taken each decade, i.e., 1970, 1980, 1990, etc. They are based upon documented head counts. However, the Urban Studies Center of the University of Louisville is Kentucky's State Data Center for purposes of making population up-dates by estimate between the formal census taking each decade. Those estimates are not fully based upon head count. We understand that the estimate for Bullitt County as of July 1, 1978, was 41,200. The 1980 federal census figure for Bullitt was 43,346, we understand. The Urban Studies Center indicated to us that their population estimates are based upon the head count of the federal census under a mathematical model.
However, an estimate of the U.S. Department of Commerce, Bureau of Census as to the July 1, 1975, population of Bullitt County was 33,476. The population estimates methodology involves the "administrative records method", as described in detail in "population estimates and projections", Series P-25, No. 665, May 1977, U.S. Department of Commerce, Bureau of the Census. The method embraces such factors as migration, natural increase, adjustment for special populations, annexations and new incorporations.
In the context of congressional redistricting legislation, the Supreme Court of the United States, in Kirkpatrick v. Preisler, 394 U.S. 526, 22 L. Ed. 2d 519, 89 S. Ct. 1225 (1969), indicated that estimates must have a high degree of accuracy if they are to overcome the presumptive correctness of the prior decennial census. In Dixon v. Hassler (U.S.D. Ct. W.D. Tenn., 1976), 412 F.Supp. 1036, 1040, the court wrote, again in the context of a case involving reapportionment of congressional districts, that "while it is difficult to express such propositions (population estimates) in quantitative-qualitative terms, we believe that the standard to be applied is that the decennial census figures will be controlling unless there is 'clear, cogent and and convincing evidence' that they are no longer valid and that other figures are valid."
Since we have no Kentucky appellate law on the narrow question of the population figure in this type of situation, it is our best opinion that the decennial figure of 1970, i.e., 26,090 would govern unless the courts put judicial credence in the July 1, 1978, estimate of the Urban Studies Center, i.e., population of 41,200 for Bullitt County. If the 1970 census controls, then the ordinance would not be subject to attack on the ground that it was not submitted for a vote of the people under KRS 68.197(3). If the estimate of 1978 controls, then the ordinance is presently subject to attack for invalidity.