Request By:
Mr. William L. Skees, Jr.
Brown, Todd & Heyburn
Sixteenth Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As bond counsel, you raise a question of statutory interpretation relating to industrial revenue bonds, as treated in KRS 103.200 (Ch. 322, 1982 session, § 1).
KRS 103.200(5) reads:
As used in KRS 103.200 to 103.285, "building" or "industrial building" means any land and building or buildings (including office space related and subordinate to any of the facilities enumerated below), any facility or other improvement thereon, and all real and personal properties, including operating equipment and machinery deemed necessary in connection therewith, whether or not now in existence, which shall be suitable for the following or any combination thereof:
* * *
(5) Any facilities for any recreation or amusement park, public park or theme park, including specifically facilities for the use of nonprofit entities in making recreational and cultural benefits available to the public;
The applicant is Gilbert O. Frederick, Jr., doing business as a proprietorship under the name of Joyland Bowl, who proposes to construct and equip a recreation facility consisting of bowling lanes, which facility will be integrated with and made a part of a landscaped six acres parcel with shrubs and trees. Also as an integral part of the six acres parcel, Mr. Frederick proposes to construct three 18-hole miniature golf courses and two batting cages (one hardball batting cage and one softball batting cage) along with various picnic areas.
In this particular case, there is a legal question as to whether the proposed facilities to be financed by industrial development bonds come within the purview of KRS 103.200(5), as amended in 1982. We understand that the industrial development bond review procedure will not be initiated by the Lexington Industrial Revenue Bond Review Commission for processing until there are adequate assurances that the proposed facilities can be legally financed by industrial development bonds under the statute cited.
You are requesting the Office of the Attorney General to issue an opinion as to whether KRS 103.200(5) will permit the Lexington-Fayette Urban County Government to authorize and issue industrial development bonds to finance the proposed facilities of the applicant under the factual situation outlined above.
It is your view that the facilities qualify for such a bond issue under the concept, "recreation or amusement parks", as literally stated in the statute.
The key language here in subsection (5) is "any facilities for any recreation or amusement park. " (Emphasis added).
Because of the word positions and the entire syntactical impact of the entire language of subsection (5), it is our view that subsection (5) relates to parks. Thus the language "any facilities for any recreation" cannot be isolated from the remainder of the language. Instead, it must be considered as restrictively integrated with this total language: "Any recreation or amusement park. " (Emphasis added). In connection with the arrangement of the words, it is no wonder that Alexander Pope said "Order is Heaven's first law." Thus syntax, the art of putting sentence units together, is vital here.
Although the word "recreation" is used early in the subsection, and the word "recreational" is used later in the subsection, we believe the courts would, if presented with this problem, change the language to read: "any facilities for any recreational or amusement park. " (Emphasis added). The court, in
Golightly v. Bailey, 218 Ky. 794, 292 S.W. 320 (1927) 321, invoked this well established rule:
"But it is a well-settled rule in the construction of statutes that the court, in order to make effective what is plain the legislature intended to do, may substitute or omit words or numerals, or alter the arrangement or structure of sentences or paragraphs." (Emphasis added).
It must be carefully observed that the court, in Golightly v. Bailey, was not transcending its constitutional boundaries by making its own law, since the court was merely construing the legislative intent from words employed. See
Lewis v. Creasey Corporation, 198 Ky. 400, 248 S.W. 1046 (1923). As the court said in
Adams Exp. Co. v. Young, 184 Ky. 49, 211 S.W. 407 (1919), it is not within the province of courts to make laws.
A buttressing point is that the language "recreation or amusement park" involves a coordinate conjunction or a connector of two coordinates of equal or synonymous rank, i.e., "recreational or amusement park. " "Or" is defined in Black's Law Dictionary, page 1246, as "A disjunctive particle used to express an alternative or to give a choice of one among two or more things."
Judge Clay, in Caudill v. Citizens Bank, Ky., 383 S.W.2d 350 (1964) 351, wrote, in speaking of the conjunction "or", that "similary the word 'or' may be construed as authorizing both of two specified uses."
The Supreme Court of Oklahoma, in In Re City of Enid, Okla, 158 P. 2d 348 (1945), wrote that "Although the words amusement and recreation are not identical in meaning, they are synonymous when related to the passing of time in pleasant or agreeable occupations." An "amusement park" is defined in Webster's Seventh New Collegiate Dictionary, page 31, as a "Commercially operated park with various devices for entertainment." A "park" is defined at page 613 of Webster's as "A piece of ground in or near a city or town kept for ornament and recreation. " A second definition is given at page 613 as "An area maintained in its natural state as a public property." In that phrase "recreational or amusement park" , we find no attempt by the legislature to establish a restrictive lexicographical concept suggesting only out-door types of park facilities. The word "recreational" or "recreation" is rather general.
Under the above analysis, we conclude that subsection (5) includes this intended language: "facilities for any recreational or amusement park. " Thus the above statute must be accepted as it is essentially written.
Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970). We believe our analysis is according to rules of grammar and sheer contextual implication.
Gilbert v. Greene, 185 Ky. 817, 216 S.W. 105 (1919) 108.
CONCLUSION
Based upon the foregoing facts, analysis, and authorities cited, it is our opinion that the proposed facilities are of such nature and character that they would qualify for industrial development financing under KRS 103.200(5). The proposed park project, which includes bowling lanes, fits practicably within the language "any recreation or amusement park. " Finally, the treatment of such subject, as a policy matter, lies peculiarly and constitutionally within the province of the General Assembly. We can only construe that legislative policy pursuant to our mandate in KRS Chapter 15. See 16 Am.Jur. 2d, Constitutional Law, § 228, pages 477-480; and