Request By:
Mr. John M. Berry, Jr.
Berry & Floyd
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In reference to OAG 83-398, you have a question related to the second issue dealt with in that opinion. The second question in that opinion concerned whether a fiscal court may haul and apply county road materials to a city street which is wholly unconnected with the county road system, with the city paying the costs of the materials.
Your letter reads in part:
"I am advised that the proposal was for the city to pay the entire cost of applying the materials to the city street which included the cost of the labor and equipment as well as materials. However, whether the city paid all or only a portion of the costs, would KRS 79.110 and 79.120 permit the city and county to contract for the county to supply some portion of the cost of the service on the theory that the residents of the city are also residents of the county paying both city and county taxes?"
Our response to the issue raised by Mr. William Ivers, Henry County Attorney, was negative on the ground that we could find no statute authorizing such county action. We did point out in that opinion that under KRS 178.010 a fiscal court could make a city street a part of the county road system by a formal order of fiscal court, and assuming that the relative physical locations of the city street and county road system made it practical. Under that fiscal court action, a fiscal court could expend county road money on such street improvement, subject to proper budgetary and financial procedure.
Your specific question is whether, under KRS 79.110 and 79.120, the city and county could contract for the county to supply some portion of the cost of service, on the theory that the residents of the city are also residents of the county, paying both city and county taxes.
KRS 79.110 reads:
"Notwithstanding any existing means provided by law for joint functions by any political subdivisions of this state, the governing bodies of any two (2) or more political subdivisions within the same county, which may include the fiscal court, may enter into contractual arrangements with each other for the performance of governmental services anywhere within the boundaries of the county."
KRS 79.120 reads:
"Any contractual arrangement entered into under KRS 79.110 shall:
"(1) Name the service or services to be performed and clearly define same;
"(2) State which subdivision of government shall render the service or services;
"(3) Define the area within which the service or services contracted for shall be performed;
"(4) Provide the means of payment of the cost of the service or services;
"(5) When the county government is one of the contracting parties, take cognizance of the fact that city residents are county residents and taxpayers to both governments, and provide for an equitable distribution of the cost of providing the service or services."
The improving of the city street segment would involve the county road department's hauling of county road department improvement materials to the site.
Clearly, the city can construct and repair a city road system, individually; and the county can construct and repair a county road system, individually. However, in your situation, in order to utilize KRS 79.110 and 79.120, the county, through fiscal court, would necessarily have to make the city street segment a part of the county system, as mentioned in OAG 83-398. This is true, since KRS 79.110 and 79.120 contemplate a "joint governmental service."
Even if the county could provide that street service without making the city street segment a part of the county system, and we doubt that it could, county taxes levied for the purpose of the county road system could not be diverted to any other purpose, even if such purpose is authorized by law. See § 180, Kentucky Constitution, KRS 68.100, 68.110, 67.080(2)(b), and 67.083(3)(t). See also Thompson v. Bracken County, Ky., 294 S.W.2d 943 (1956) 947, on the principle of nondiversion of tax monies.
Finally, the generality of KRS 79.110 and 79.120 must give way to the specific nature of KRS 178.010(2), which authorizes a fiscal court to aid in city street construction or maintenance, or both, by formally accepting the city street segment into the county road system. See Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). A specific statute controls a more general statute. Heady v. Com., Ky., 597 S.W.2d 613 (1980) 614.