Request By:
Hon. Frank R. Metts
Secretary
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
In your letter to this office dated September 29, 1982, you set forth the following factual situation and legal question as follows:
"During the 1982 regular session the General Assembly enacted Chapter 203, Sections 10-18, which established a procedure by which the Transportation Cabinet could issue permits for the transporting of natural resources for vehicles whose gross weight and load exceed the limitations imposed under KRS Chapter 189. (Senate Bill 144).
"Section 12(4) now codified as 189.276(4) provides:
'(4) The cabinet shall require a fee for the issuance of a resource recovery road hauling permit of four-tenths (4/10) of one percent (1%) of the gross value of natural resources, or the average value of such natural resources as developed and computed by information supplied to the department of revenue, whichever is less, transported by the permittee over the roads of the Commonwealth except as provided by subsection (4) of KRS 177.973. For purposes of this section, "gross value" shall mean gross value as defined in KRS 143.010(6) and 143A.010(5). Any motor carrier transporting natural resources under an approved resource recovery road hauling permit shall be exempt from the provisions of KRS 138.660.'
"Funds generated by this purported 'fee' are to be allocated to the resource recovery road funds and used solely for the repair and maintenance of resource recovery roads. See KRS 177.973.
"As you are no doubt aware, serious questions have been raised concerning the constitutionality of this Act. Specifically, it has been pointed out that Chapter 203 was a bill that originated in the Senate. By way of amendments, the House of Representatives added the provisions which established the resource recovery road fund and the fee of four-tenths (4/10) of one percent of the gross value of the natural resource being transported.
"Section 47 of the Kentucky Constitution provides that all bills for raising revenue shall originate in the House of Representatives. It appears then that certain sections of Chapter 203 are in conflict with this constitutional provision. Your opinion is requested as to the following question:
"For purposes of Section 47 of the Kentucky Constitution, may the House of Representatives add to a bill originating in the Senate a provision which is designed to generate revenue for the benefit of the public?
"Since KRS 189.276 requires the Transportation Cabinet to issue permits by October 1, 1982, your immediate attention to this matter would be greatly appreciated."
We are of the opinion that Senate Bill 144 may well have constitutional questions and would suggest that those questions be resolved in a declaratory judgment action by a court of law. Section 47 of the Kentucky Constitution states as follows:
All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose amendments thereto: Provided, No new matter shall be introduced, under color of amendment, which does not relate to raising revenue.
The initial question to be decided is whether Senate Bill 144 is in fact a revenue raising measure falling within the scope of Section 47. The court in Livingston County v. Dunn, 244 Ky. 460, 51 S.W.2d 450 (1932), stated that for a bill to be a revenue measure within the meaning of this section, it must be a revenue measure in the strictest sense of the word and not only incidentally such a bill. As pointed out in Central Construction Company v. Lexington, 162 Ky 286, 172 S.W. 648, 649 (1915):
It is clear from every source that the terms 'bills for raising revenue' are confined to bills to levy taxes in the strict sense of the word, and do not embrace bills for other purposes which incidentally create revenue, unless so framed as to draw money from the people, with no other advantage or benefit to them except the general protection which belongs to the citizen under our form of government as a matter of common right.
Assuming that the court found Senate Bill 144 to be a revenue raising measure, the court would then be faced with the question of whether the bill was enacted in violation of Section 47 of the Kentucky Constitution. Section 47 mandates that any revenue raising bill must originate in the House of Representatives. See Dalton v. State Property Commission, 304 S.W.2d 342 (Ky. 1957). While Section 47 allows the Senate to add an amendment to such a House Bill, we have found no authority interpreting that section to permit the converse. Senate Bill 144 originated in the Senate, with the present controversial amendment being added to the bill in the House. We can find no legal authorities interpreting Section 47 as to such a factual situation.
In conclusion, we would strongly recommend the filing of a declaratory judgment action in order to obtain a court decision concerning the constitutionality of Senate Bill 144. Of course, any decision as to the implementation of this law pending the outcome of any such lawsuit is a matter for you as Secretary of the Transportation Cabinet and for the Governor of the Commonwealth of Kentucky.