Request By:
Mr. Robert M. Kirtley
Daviess County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your request for an opinion concerns establishing a metropolitan sewer district. The letter reads as follows:
"The Owensboro City Commission and the Daviess Fiscal Court are presently reviewing KRS Chapter 76 for the purpose of establishing a metropolitan sewer district. In reviewing this matter it became apparent that this chapter was originally created for the benefit of Jefferson County and later amended to allow counties with cities of the second class to establish metropolitan sewer districts. I would like your opinion concerning the following questions:
"1. May Owensboro and Daviess County, having only one state senatorial district, validly form a metropolitan sewer district, notwithstanding the language contained in KRS 76.030(1) that states '. . . members shall be so selected and appointed so that no more than one member resides in any one state senatorial district' ?
"2. Is a metropolitan sewer district limited to the five and six percent interest yields for revenue bonds contained in KRS 76.150 and 76.253, or are there other funding means available outside the provisions of Chapter 76?
"3. May Daviess County pursuant to KRS 67.083(3)(r) or other related subsections, by joint action with the City of Owensboro, create a metropolitan sewer district subject to more restrictive control by the local legislative bodies than provided in KRS Chapter 76, pursuant to KRS 67.083(6)."
KRS 76.010 authorizes the establishing of a metropolitan sewer district by the joint action of a second class city and the county in which it is located. Owensboro is a second class city. KRS 81.010(2).
KRS 76.030(1), relating to the sewer district board, reads:
"(1) The business, activities, and affairs of such district shall be managed, controlled and conducted by a board composed of seven (7) members, four (4) of whom shall be appointed by the mayor of such city subject to the approval of the city legislative body, and three (3) of whom shall be appointed by the county judge/executive of such county subject to the approval of the fiscal court, and which seven (7) members thus appointed shall constitute the board of such district. In counties containing a city of the first class, of the three (3) members appointed by the county judge/executive there shall be representatives of each city of the fourth class which uses metropolitan sewer district treatment facilities for treatment of all of the sewage generated within the city. Such appointment shall be subject to approval by the fiscal court. Not more than four (4) members of the board shall be affiliated with the same political party. After March 19, 1977, members shall be so selected and appointed so that no more than one (1) member resides in any one (1) state senatorial district. "
You have written that Daviess County and the City of Owensboro are both within only one senatorial district. In fact, Senatorial District No. 8 covers all of Daviess County and Hancock County, and a portion of Ohio County.
KRS 76.010 and 76.030, as originally enacted in 1946 (Ch. 104, §§ 1 and 3), were designed for only Jefferson County and Louisville. In the legislation of the Extraordinary Session of 1976 (Ch. 13, § 27), KRS 76.030 was amended to provide, inter alia, that "After the effective date of this Act, members shall be so selected and appointed so that no more than one member resides in any one state senatorial district. " That Act became effective March 19, 1977. It should be noted that KRS 76.010 (originally providing for a joint metropolitan sewer district in Jefferson County) was amended in 1968 (Ch. 152, § 50) to add that such a joint MSD could be established by a second class city and the county in which it is located. Presently, under KRS 6.011, and as concerns the second class cities of Ashland, Bowling Green, Covington, Frankfort, Lexington, Newport, Owensboro and Paducah, there is only one senatorial district in these counties: Boyd, Warren, Franklin, Campbell, Daviess, and McCracken. There are two senatorial districts involving Kenton County and three senatorial districts involving Fayette County.
Thus in terms of the eight second class cities and the counties in which they are located, the provision in the amendment of KRS 76.030 in the 1976 session (Ex. Sess., Ch. 13, § 27), which provided that after March 19, 1977, no more than one member can reside in any one state senatorial district, is simply incredible and meaningless in terms of KRS 76.010 and 76.030.
It is our view, in answer to question no. 1, that the one-member-per-senatorial-district provision is basically meaningless; and we believe the courts would so construe it. Justice Cammack, for the Court, in Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49 (1943) 51, observed:
"It is never to be presumed that the legislature intended to enact an absurd statute, though courts must ever be cautious not to substitute their opinion for that of a legislature as to the intent of an enactment."
The main thing here is that KRS 76.030 provides explicitly for the creation of a metropolitan sewer district in the counties containing second class cities. We believe the courts will uphold their use of the statute for that overriding purpose.
For these reasons, it is our opinion that Owensboro and Daviess County can validly establish a metropolitan sewer district pursuant to KRS 76.010 et seq., regardless of the senatorial district provision.
Your second question relates to whether such a MSD can be funded by means other than revenue bonds, which bonds are mentioned in KRS 76.150, 76.253, and 76.254.
The district is empowered to borrow money for its statutory purposes. KRS 76.080(9). It has the authority "to fix and collect sewer rates, rentals, and other charges, for services rendered by the facilities of the district, which sewer rates, rentals, and other charges, applicable within the limits of a city of the first or second class, shall be subject to the approval, supervision and control of the legislative body of such city as hereinafter provided." KRS 76.080(10). See Veail v. Louisville & Jefferson County Metropolitan Sewer District, 303 Ky. 248, 197 S.W.2d 413 (1946).
See KRS 76.090, concerning the detailed treatment of the district's establishing of a schedule of rates, rentals, and charges, to be collected from all the real property within the district area served by the facilities of the district. Charges for sewer service are not taxes. Veail v. Louisville & Jefferson County, above. See KRS 76.140 (district has no power to levy taxes). The district is a separate municipality; and any debt it may incur must be paid solely out of revenues of the district. Thus its obligations do not constitute debts within the meaning of §§ 157, 158 or 159 of the Kentucky Constitution.
See KRS 76.172, relating to assessments made against land in the district for construction costs.
KRS 76.190 relates to contracts with other cities or districts, and the rates for service and connections.
The district, under KRS 76.200, can apply for federal and/or state financial aid by way of available grants.
The county in which the district is located may use county money, available and budgeted, for such sewer system purposes. See KRS 67.083(3)(r).
Your third question is whether Daviess County, if it enters into a joint creation of a metropolitan sewer district under KRS Chapter 7l, may create through the joint action with the City of Owensboro a district subject to more restrictive control by the local legislative bodies than that provided in KRS Chapter 76.
The answer is "no". The statutes of KRS Chapter 76 are controlling; and the district would be subject to those statutes. See Kentucky Region Eight v. Com., Ky., 507 S.W.2d 489 (1974) 491; and Sands, Sutherland Statutory Construction, Vol. 1A, § 25.03.
You have added a fourth question:
"Would the reference set out in KRS 76.010 authorize Owensboro and Daviess County to create a metropolitan sewer district pursuant to the provisions of KRS 76.010 through KRS 76.210, even though these sections refer in part only to cities of the first class? "
The answer is that KRS 76.010 expressly adds second class cities, and the counties in which they are located, in authorizing the joint creation of a metropolitan sewer district "under the provisions of KRS 76.010 to 76.210 . . . ." (Emphasis added). Thus the various statutes within that cited group apply equally to second class cities, regardless of whether or not second class cities are mentioned specifically in statutes other than KRS 76.010. For example, KRS 76.030 does not mention second class cities. Nevertheless, that statute generally applies to a second class city by reason of the policy expressed in KRS 76.010. Statutory language must be given its common and accepted meaning. Barnes v. Dept. of Revenue, Ky., 575 S.W.2d 169 (1978).