Request By:
Honorable Charles J. McEnroe
108 American Building
P.O. Drawer 10
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 31 in which you, on behalf of the city of Ferguson, raise a question concerning the validity of an ordinance enacted by the city regulating the parking of mobile homes or house trailers. Also involved is an attempt to enact a second ordinance to correct any deficiency in the initial ordinance. You present the following facts and question:
"Ordinance #35, a copy of which is attached hereto for your reference, was apparently never published pursuant to the applicable statutes. It was posted in certain public places in the City of Ferguson, including the post office, but actual publication, as best the City can tell, never occurred.
Subsequently thereto, an attempted amendment to the ordinance was approved by the Town Board on Monday, April 7, 1980. This purported amendment was not published either.
The City would like an opinion from the Attorney General's Office as to the validity of these two ordinances, since they were not published at any point in time."
After reviewing the law on the subject, we have reached the same conclusion that you have which is that neither ordinance was legally enacted. We will begin by disposing of the second so-called ordinance which was not only never posted or published but contains no enacting clause, nor was it properly signed and attested to by the clerk as required of all ordinances enacted under KRS 88.060 which was in effect at the time of both attempted enactments.
As to the initial ordinance that was enacted in 1977, we first refer to KRS 88.060(3) applicable to sixth class cities prior to its repeal as of July 15, 1980. This subsection was amended in 1966 to read as follows:
"(3) Every ordinance shall be signed by the chairman, attested by the clerk, and published pursuant to KRS Ch. 424 [at least once in a newspaper published in the city, or posted in at least three public places therein], and shall be in force from and after the publication [or posting] ."
The language underlined above was inserted by the 1966 amendment and the words bracketed were deleted. Thus prior to 1966, ordinances were effective simply by posting, an optional method of publication. Referring to the case of Kaelin v. Indian Hills, 286 S.W.2d 868 (1956), the court held that an annexation ordinance not posted, as then permitted under this statute, never became effective. This case clearly indicates that the city legislature must follow the terms of the statute requiring at that time either posting or publication in the city newspaper.
Following the 1966 amendment to KRS 88.060 and prior to its outright repeal in 1980, all ordinances were required to be published pursuant to Chapter 424 KRS in a newspaper qualified under the publications act in the manner prescribed in KRS 424.120(1). This statute requires publication in a newspaper at least once and within 30 days following enactment of the ordinance. As we said the ordinance in question was enacted in 1977 and should have been published in a newspaper in the manner prescribed in KRS 424.120(1), and failure to do so would in our opinion invalidate the ordinance which means that it never became legally effective and was therefore unenforceable. As a matter of fact, even in the absence of the 1966 amendment to the publication requirements under KRS 88.060, the publication act, Chapter 424 KRS, which was enacted in 1958, superseded the posting alternative authorized in KRS 88.060(3) in view of KRS 424.190 which provided before a 1982 amendment, that where a statute provided that an advertisement may be made by posting or by newspaper publication, the advertisement must be made by newspaper publication in accordance with the act.
Since neither ordinance was legally enacted, the city will have to enact an ordinance in accordance with the 1980 Code requiring publication pursuant to Chapter 424 KRS. See KRS 83A.060 (1)(2)(3)(4)(9). In view of this we call your attention to a 1982 amendment to KRS 424.190 which added subsection (2) applicable to cities of the fifth and sixth classes which reads as follows:
"(2) Any city of the fifth or sixth class may, when the cost of the newspaper publication exceeds the cost of postage, supplies and reproduction for the alternative method of publication, in lieu of newspaper publication of advertisement, substitute delivery of a copy of the advertisement by first class mail to each residence within the publication area."
The above statute may or may not apply to the city of Ferguson. We also call your attention to KRS 424.380 enacted in 1982 concerning the failure to comply with the publication requirements under Chapter 424 which may be of interest to you.