Request By:
Brantly D. Amberg, Esq.
Secretary, Board of Levee Commissioners
of Fulton County
Hickman, Kentucky 42050
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Fulton County Board of Levee Commissioners, a body politic organized and functioning pursuant to KRS Chapter 266.
You state that the Board has entered into an agreement with the United States Army Corps of Engineers whereby the Corps has agreed to excavate a ditch beginning at Hickman and extending some seventeen miles to a point near the Tennessee state line. Under the agreement the Board has agreed to acquire all easements and rights of way for the construction and operation of the channel. In reliance upon the agreement, the Corps has constructed a pumping station on each end of the proposed channel at a cost of some $8,000,000.
It is assumed by the Board that when the channel is constructed it will relieve the existing levee "and the lands adjacent thereto enlarged by sipe and rain water." See KRS 266.130. The Board will have to acquire certain rights of way by the exercise of the power of eminent domain but its $60,000 in funds will be grossly insufficient to acquire even one easement by condemnation.
Your questions are as follows:
"In the event the Board condemns the necessary easements and does not have sufficient funds to pay the award of the condemnation commissioners, may the circuit court order the fiscal court to levy a tax on the property within the levee district sufficient to pay for the easements?
Does either the Board or the fiscal court have the authority to levy a special assessment in order to raise sufficient funds to enable the Board to obtain the necessary rights of way? "
Sections 13 and 242 of the Kentucky Constitution provide in part that no person's property shall be taken for public use without just compensation being previously made to him. See also the fifth amendment to the United States Constitution. In Foster v. Sanders, Ky. App., 557 S.W.2d 205, 208 (1977), the Court said in part:
"In construing sections 13 and 242, this state's highest court has held that the owner must be paid or tendered compensation before his property may be 'taken' for a public use. If the property is only 'injured or destroyed' rather than 'taken,' the damages need only be paid or 'secured' . . ."
In Garvin v. State Road Department, Fla., 149 So.2d 869, 871 (1963), the Court said in part:
". . . [B]ut we think the constitutional requirement of 'just compensation' in condemnation proceedings imposes upon the courts of this state the obligation to see that such compensation is awarded to the citizens whose property is taken in such proceedings. . ."
As to the control of levee boards by the courts, the following appears in 52A C.J.S. Levees & Flood Control § 25:
"The courts will make the necessary orders to compel the members of the boards intrusted with the administration of levee or flood control districts to perform their statutory duties; but the courts will not interfere with the proper exercise of their discretionary powers, nor will the courts control the action of such boards on the ground that they have acted hastily or unwisely, although in cases of gross or arbitrary abuse of their powers they may be restrained by the courts . . ."
While persons whose land is taken for a public use must be compensated for the loss of that land, we do not know of any authority for the circuit court to compel the fiscal court to levy a tax to pay for the land to be taken. The levying of taxes is a legislative rather than a judicial function. In the absence of sufficient funds the board of levee commissioners will not be able to instigate the condemnation proceedings.
Pursuant to KRS 266.100(4) the board of levee commissioners is a body politic, with the status of a corporation, and in its corporate name may do everything authorized by law with reference to public levees. KRS Chapter 266 authorizes a board of levee commissioners to raise money by three basic methods and the board is thus limited to those procedures in its fund raising attempts.
KRS 266.150 provides in part that for the purpose of building or repairing its levees the Board may levy and have collected an annual tax, not exceeding fifty cents on the one hundred dollars, on all property within the territory protected by the levee. KRS 266.160 sets forth the Board's power to borrow money and issue bonds for the purpose of establishing, constructing, reconstructing, repairing, enlarging and maintaining the levees. KRS 266.170 deals with the Board's power to make additional assessments and the procedures which must be followed and the conditions which must exist before that statute may be utilized.
Thus any so-called special assessment to be made by the Board must conform to the statutorily authorized methods by which a board of levee commissioners may raise and secure funds.
KRS 67.083(3)(i) provides in part that except as otherwise provided by statute a fiscal court may levy taxes and appropriate funds in connection with flood control projects. However, that statute contemplates a project by the fiscal court, not the expenditure of county funds in connection with an undertaking of a board of levee commissioners, a separate and independent taxing district organized and functioning pursuant to KRS Chapter 266. In our opinion, the fiscal court could not levy a special assessment in order to raise funds to enable the board of levee commissioners to purchase the needed land or rights of way.
Note also that KRS 266.090, dealing with the order establishing a levee, provides that if a levee is to be established an order must be entered and a copy directed to all applicants on condition that they pay the cost of procedure and all sums required to be paid to the owners and tenants of lands taken.