Request By:
Mr. E. L. Howe, Jr.
Richardson, Howe, Wilson & Cunningham
Certified Public Accountants
801 Maple Street
Murray, Kentucky 42071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have requested the Office of the Attorney General to render a formal opinion regarding whether a public common school district is still required to publish a copy of its budget in the newspaper. As a firm having been engaged to audit two local school districts for the just ended fiscal year, you informed us you were performing the audits in accordance with the instructions set forth by the Procedures for Auditing Local School Districts' Fiscal Records (July 1982). These audit procedures were implemented by the State Committee for School District Audits pursuant to KRS 156.256(2). You further informed us that because the above referenced audit procedures require independent auditors to comment on compliance with various Kentucky Revised Statutes and Kentucky Administrative Regulations, you are concerned with the continued legal effect of KRS 424.250.
KRS 424.250 reads as follows:
"At the same time that copies of the budget of a school district are filed with the clerk of the tax levying duthority for the district, his provided in KRS 160.470, the board of education of the district shall cause the budget to be advertised for the district by publishing a copy of the budget in a newspaper. "
However, it is no longer provided for under KRS 160.470 that a school budget be filed with the clerk of the tax levying authority for the district because since 1976 each school district has been its own tax levying authority. See KRS 160.460. The question then becomes whether a substantial amendment of KRS 160.470 makes for impossibility of compliance with KRS 424.250. That is, has KRS 424.250 been impliedly repealed by the amendment of KRS 160.470. We must conclude that at least part of KRS 424.250 has been impliedly repealed, but we are also of the opinion the principal requirement of KRS 424.250, the publishing of the school budget in a newspaper, is still capable of being and should be followed.
The repeal of statutes by implication is not favored and will be avoided whenever possible. See
City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404 (1961). The judicial rule of statutory construction regarding repeals by implication was clearly stated in the case of
Tipton v. Brown, 277 Ky. 625, 126 S.W.2d 1067 (1939), which quoted from
Schultz v. Ohio County, 226 Ky. 633, 11 S.W.2d 702, 704 (1928) as follows:
"'It is an elementary rule of construction that the repeal of an existing law by implication is not favored by the courts, and a legislative enactment will never be interpreted as inferentially repealing a prior statute or part thereof unless the repugnancy is so clear as to admit ofno other reasonable construction. This universal rule means that the courts will construe the acts if possible so that both shall be operative and effective if that can be done without contradiction or absurdity. If any part of the existing law can be reconciled or harmonized with the provisions of the new act it will not be leamed as having been repealed. '" (Emphasis supplied).
Thus, we believe that while the amending of KRS 160.470 and the making of each school district their own tax levying authority repeals that part of KRS 424.250 as to filing the budget with a clerk, the other part of the statute calling for the budget to be published in a newspaper is capable of being observed. We note that the penalty provision for failing to follow KRS 424.250 also still remains. See KRS 424.990.
Recognizing the above construction of KRS 424.250 provides no guidance for when the budget of a school district should be published, we can only suggest that substantial combudget with what remains of KRS 424.250 would be served by the budget being published once it has been approved by the State Board of Education. See KRS 160.470.
We trust the above will be of assistance to you concerning your duties in auditing a local public common school district. If you have further questions concerning this matter, please contact us.