Request By:
Mr. Bobby Roots
Magistrate
834 West Main Street
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question relates to KRS 173.720(1), involving the organizing of a library district. That subsection reads:
"Districts shall be organized in the following manner:
"(1) Upon the filing of a duly certified petition of fifty-one percent (51%) or more of the number of duly qualified voters who voted in the last general election in each county to be included within the territorial limits of the proposed district, the fiscal court of each county in the proposed district shall adopt a resolution ordering the levy of a tax of not more than twenty cents (20 ) on each one hundred dollars ($100) worth of property assessed for local taxation. Such petition shall be filed with the fiscal court in each county in the proposed district not later than ninety (90) days after the date of the first signature on the petition. A certified copy of the order of the fiscal court shall be filed within thirty (30) days with the county clerk who will add the levy to the next annual tax bill of the county or counties concerned."
Your question was stated as follows:
"Assuming that a duly certified petition of fifty-one percent or more of the number of duly qualified voters who voted in the last general election of Taylor County is properly presented to the Taylor County Fiscal Court to establish a library district pursuant to this statute, does the fiscal court have to enact this tax? I recognize that the statute reads that:
"' . . . the fiscal court of each county in the proposed district shall adopt a resolution ordering the levy of a tax . . .'
"My specific question to you by this letter is what can happen to the magistrates as members of the Taylor Fiscal Court who refuse to adopt a resolution ordering the levy of a tax if the Petition is a duly certified and valid Petition."
Assuming that the petition described in KRS 173.720 is properly filed with the fiscal court under the terms expressly laid out therein, the fiscal court of your county, in which the aistrict is located, is required, i.e., mandated, to adopt a resolution ordering the levy of a tax of not more than twenty cents (20 ) on each one hundred dollars ($100) worth of property assessed for local taxation. The petition and order should specify the precise tax rate, which cannot exceed twenty cents per one hundred dollars, as just mentioned. Subsection (2) of the statute requires that the petition contain the specific tax rate desired, which rate cannot exceed the twenty cents rate mentioned in subsection (1). The tax levy resolution will simply adopt the tax rate shown on the petition as validly stated.
It must be kept in mind that this library tax is not a part of the county tax within the prohibition of § 157, Kentucky Constitution. To the contrary, the library tax is a tax levied by a new authorized and separate taxing district pursuant to statutory authority.
Boggs v. Reep, Ky., 404 S.W.2d 24 (1966) 26.
When we say petition properly filed, we mean a petition which meets exactly all of the conditions of the entire statute.
Our construction of the language directing an order of tax levy is based upon the plain and literal meaning of the words used, the conclusion being reasonable.
Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959).
In addition, the statute reads in part: "the fiscal court of each county in the proposed district shall adopt a resolution ordering the levy of a tax . . ." (Emphasis added). Under KRS 446.010(29), as used in the statute laws of this state, unless the context requires otherwise: the word "shall" is mandatory. There is nothing in KRS 173.720 suggesting something other than mandatory. The court, in
Department of Revenue v. Oldham County, Ky., 415 S.W.2d 386 (1967) 390, observed that the principle of "shall" meaning mandatory in KRS 446.010 was recognized in our case law many years before the 1942 statutory revision of KRS 446.010. See
Horning v. Fiscal Court of Caldwell County, 187 Ky. 87, 218 S.W. 989 (1920).
Your ultimate question is what can happen to the magistrates as members of the Taylor Fiscal Court who refuse to adopt a resolution ordering the levy of a tax if the petition is proper in all aspects under KRS 173.720?
We are fully aware of the political implications of creating new taxes or raising old taxes. That seems to be an inevitable part of the American governmental life. However, here, under this mandated procedure, and where the petition is properly drawn and filed in every particular under KRS 173.720, the fiscal court members do not have the luxury of a choice. There is simply no choice. The fiscal court members at a proper meeting by majority vote will have to vote on and pass the resolution of a tax levy, as described above. Actually any member failing to vote yes on such resolution would be in violation of KRS 173.720.
Finally, where the members of fiscal court fail or refuse to enter such an order, such inaction is in violation of KRS 173.720 and is indeed arbitrary. Section 2 of the Kentucky Constitution would also be violated, since it expressly prohibits the exercise of arbitrary power.
The Court of Appeals, in Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964), wrote that Section 2 of the Kentucky Constitution expresses a concept broad enough to embrace both due process and equal protection of the laws, both fundamental fairness and impartiality.
If the fiscal court does not enter the order, as required, it may be subjected to a citizens' suit in the local circuit court for mandamus or mandatory injunction to compel the fiscal court to do its duty.