Request By:
Mr. Larry D. Noe, P.S.C.
Attorney at Law
321 East Broadway
P.O. Box 15
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Questions relating to county government are raised in your letter. You request our opinion.
Question No. 1:
Can a fiscal court under the provisions of KRS 67.083 or any other applicable statutes impose a vehicle sticker license fee for the purpose of funding an ambulance service for the people in a county?
The Fiscal Court of Taylor County may impose an auto sticker tax under its police power, as found in KRS 67. 083(3)(t). However, the proceeds cannot exceed the amount of revenue reasonably necessary to fund the administrative cost of the requlatory power. There is nothing to prohibit the use of the revenue for ambulance service purposes.
Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721(1941).
Question No. 2:
Would this vehicle license fee violate section 181 of the Kentucky Constitution?
The answer is "no". The sticker tax comes under the police power of the county government. Under §§ 170 and 181, Kentucky Constitution, a fiscal court can impose two kinds of taxes for general revenue purposes: (1) ad valorem, and (2) occupational or license tax.
Driver v. Sawyer, Ky., 392 S.W.2d 52 (1965).
Question No. 3:
Could the fiscal court impose a vehicle license fee only upon those citizens who reside in a particular county and not include those individuals who on a regular basis travel within that county from neighboring counties?
Such a tax calls for vehicle registration and a supervisory regulation over their running over the county roads. The tax could constitutionally apply to those automobiles of citizens residing in Taylor County and using roads under the fiscal court's jurisdiction. It could also constitutionally apply to citizens from other counties who run their vehicles over county roads on a consistent or regular basis. See
Bowser & Co. v. Thompson, Judge, 103 Ky. 331, 45 S.W. 73 (1898). The court, in upholding an ordinance implementing a statute providing that a city may tax "vehicles run in the city", wrote this at page 73:
" . . . [t]hat the license fee may be imposed under the police power of the state seems quite clear. The use of the streets and public ways of the city is a use common to all, but this use must not be exercised by any to the injury of others; and when, in the nature of things, it will likely be so exercised, regulations may be imposed under the police power. As said by counsel for the appellee: 'There is perhaps in the catalogue of things requiring police surveillance no one thing, excepting the sale of intoxicating drinks, which requires police regulation to a greater extent than vehicles. Runaways, collisions, running over pedestrians, stealing property given for transportation, overcharging, robbing in public conveyances, fast and reckless driving, are but a tithe of the evils calling for such surveillance in the use of vehicles on the public streets. ' In order to accomplish this successfully, vehicles and their owners and drivers must be identified by the license system, the cost of which regulation is to be borne by the licensee.
See also
City of Mayfield v. Carter Hardware Co., 191 Ky. 364, 230 S.W. 298 (1921), as to the auto sticker tax under the police power. In
Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721 (1941), 723, the court held specifically that such a license tax may be imposed on the trucks of a nonresident of a city regularly operating trucks in that city, although his sole place of business is in another city. The basis of such decision was that the nonresident was not merely an occasional user of the streets, but was manifestly carrying on a business in the city by virtue of his making regular trips with his trucks within the city. Thus nonresidents who regularly drive their vehicles or come to work on county roads would fall under the valid application of this county police power.
Question No. 4:
In the event that the fiscal court should impose such a vehicle sticker license fee, could the county clerk be used for collection of said fee at the same time that the citizens purchase their Kentucky license and would the clerk be allowed a fee for administering for collection of this tax?
The duties of the county clerk are established by acts of the General Assembly. A fiscal court has no authority to impose additional duties upon the county clerk. Only the General Assembly can provide for legal fees of such constitutional officer. The county clerk's proposed role in such tax collection cannot be integrated with the clerk's office or official duties.
Question No. 5:
Can the fiscal court through an ordinance grant a person, firm or corporation the exclusive authority to operate an ambulance service within its county?
Ambulance service may be carried on in the county under one of three categories: (1) ambulance service as a direct county operation (KRS 67.083(3)(d)); (2) ambulance service under a county franchise (§ 164, Ky. Const. and KRS 65.710); and (3) ambulance service provided by an ambulance district (KRS 108.080 et seq.).
Under KRS 65.710, a fiscal court, without a vote of the people, may let ambulance service out under contract to private persons or a corporation, provided such franchise is let under competitive bidding pursuant to § 164, Kentucky Constitution. Such a franchise may be granted for up to a twenty year period under § 164 of the Constitution, contrary to the maximum one year provision of KRS 65.710(5).
The fiscal court, through an ordinance, could grant an exclusive franchise for the franchise period, provided it makes a finding that such exclusive grant is in the public interest. The language in
Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967), strongly suggests that the number of franchises to be granted by a fiscal court would be left to that body, depending upon public necessity. The court said this at page 80:
"Appellant makes a strong argument that the franchise prohibits competition and this is bad under our free enterprise system. We agree that only where the public interest demands should competition be restrained or limited. However, many times excessive competition results in poor service and even no service. When, in the opinion of the legislative body, this state of facts exists then they have it within their power to take such measures as are necessary under the Constitution and laws to make service available."
Earlier in the opinion of Ray v. City of Owensboro, above, the court specifically held that a local government, a city, could grant a franchise providing for ambulance service pursuant to §§ 163 and 164 of the Kentucky Constitution.
Question No. 6:
In the event that a court should grant exclusive authority to a person, firm or corporation to operate an ambulance service in a county, what effect, if any, would this have on a city desiring to contract or grant authority to another organization to operate ambulance service within the corporate city limit?
The county's granting a franchise and the city's granting a franchise are two different exercises of power.
The use of the franchise power, under §§ 163 and 164 of the Constitution, is framed around the exclusive jurisdiction of the city and the fiscal court within the city territory and within the unincorporated portions of the county respectively. Thus a city has exclusive jurisdiction of a streets lying within city boundaries; and the fiscal court has exclusive jurisdiction of streets or roads lying within the unincorporated boundaries of the county. On that basis the city's letting of an ambulance service within that city (ambulances traveling over city streets) will in no way conflict with the fiscal court's authority to grant an ambulance franchise relating to ambulance service within the unincorporated boundaries of the county, and involving ambulances traveling over roads in that area. See KRS Chapter 178. See