Request By:
Mr. Ben K. Davis
City Attorney
401 Main Street
Williamsburg, Kentucky 40769
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to an ambulance service contract entered into between Whitley County and Professional Medical Transport for one (1) year, the service to be rendered in the county territory, exclusive of the cities of Corbin and Williamsburg.
As City Attorney of Williamsburg, you request our opinion concerning whether Whitley County can thereby disclaim all responsibility for ambulance service for people residing within the corporate limits of either Williamsburg or Corbin.
You point out that the expenditures of Whitley County for these ambulance services have been met from taxes paid on property located in both the cities of Williamsburg and Corbin, and in the unincorporated portions of Whitley County. The same rate of taxes is levied on all property in corporate and in unincorporated territory, having the same classification.
The constitutional provisions for taxation of all property (ad valorem taxes), unless exempted, are self-executing. See §§ 3, 171, 172, 174, and 175, Kentucky Constitution; and Reeves v. Island Creek Fuel & Transportation Co., 313 Ky. 400, 230 S.W.2d 924 (1950).
In KRS 68.090 the General Assembly has provided that for county purposes the fiscal court of each county shall levy an ad valorem tax on all property subject to county taxation. Thus a fiscal court may levy ad valorem taxes on property both in the corporate and unincorporated portions of the county. As for property subject to ad valorem taxation by the county, see KRS 132.190. Clearly the county's taxing power extends to all property within the entire county, whether located in or out of the cities within the county. McInerney v. Huelefeld, 116 Ky. 28, 75 S.W.237 (1903).
The issue in City of Richmond v. Madison County Fiscal Court, 290 Ky. 293, 161 S.W.2d 58 (1942), was whether it was the duty of the City of Richmond or the county of Madison to provide funds for hospitalization and medical aid for paupers residing within the corporate limits of the City of Richmond. It was alleged in Richmond's petition that its citizens pay county taxes for the maintenance of the county government and necessary expenses of the county in the same proportion and at the same rates as citizens of the county who live outside the corporate limits of the city. It alleged that the rate of taxation levied by the Madison Fiscal Court applied alike to property located within the corporate limits of Richmond and property located in the county outside the corporate limits of the city. It alleged that the fiscal court had failed and refused to furnish assistance to the paupers residing within Richmond, the fiscal court contending that it was the duty of the city alone to furnish hospitalization and medical and other aid to the city paupers. Thus the city charged the county with discriminating against residents of the city in connection with the county's pauper aid program. The county ultimately claimed it extended aid to city paupers; and it affirmatively alleged that the extending of aid to paupers in the city was a joint responsibility of the city and county.
The Madison Circuit Court entered a judgment providing that the obligation to pay for medical aid to indigents in the city was a joint obligation of the city and county. It required the county and city to pay such proportionate part of the expense as the taxable value of the property located in the city bears to the entire taxable value of the property of the county of Madison including Richmond.
The Court of Appeals, on appeal by City of Richmond, observed that the controversy between the city and county related to the duties of both governments concerning a governmental function common to both. The Court of Appeals, in reversing, held that the expense of caring for the poor is an expense common to the whole county, and the citizens of the City of Richmond paid their proportionate part of that expense when they paid their county taxes into the county treasury. To require them to pay the city's proportionate part, the court said, of this expense again would amount to a discrimination against them in favor of taxpayers residing in the county outside the city, and would impose upon property located in the city a double burden for the same purpose. The central holding of the Court of Appeals was that "All property located in the county is liable for its ratable proportion of the taxes levied for a purpose common to the entire county. " (Emphasis added). The Court added that the city could, permissively, use its funds to supplement the county's pauper program.
The Court of Appeals, in the earlier case of Campbell County v. City of Newport, 174 Ky. 712, 193 S.W. 1 (1917), held that a statute, which provided that the funding of a juvenile court Act would be jointly assumed by ad valorem taxes levied by the county and city was violative of § 171 of the Kentucky Constitution, which requires uniformity as to all property of the same class subject to taxation within the territorial limits of the tax levying authority.
The question arises as to whether providing ambulance service involves a purpose common to the entire county. KRS 65.710 enables both cities and counties to contract with private persons to provide ambulance service to the residents of such cities and counties. KRS 108.105 provides for the creation of an ambulance service district in any city or county. KRS 108.080 defines a county as the incorporated or unincorporated areas thereof. KRS 108.105 authorizes a city and county to jointly establish an ambulance service district. The ambulance service district is funded through a district levied tax. Thus it is not a city nor a county tax. KRS 108.175 permits people in unincorporated areas to become a part of an existing ambulance service district, subject to a vote of the people. Such district may levy its own ad valorem tax at the rate suggested in the statute.
Counties have specific authority to establish ambulance service, pursuant to KRS 67.083(3)(d).
Since Whitley County has entered into a contract for the furnishing of ambulance service, pursuant to KRS 65.710, it is our opinion that ambulance service involves a purpose common to the entire county. Thus, unless such contract embraces all citizens within the county, including those who live in cities within the county, §§ 2 (prohibiting arbitrary action) and 171 of the Kentucky Constitution would be violated. Section 171 requires uniformity as to all property of the same class subject to taxation within the territorial limits of the county. On its face ad valorem taxes used to fund the ambulance contract would be paid by taxpayers in the cities of Whitley County as well as by taxpayers in the unincorporated portion of that county. As the court said in City of Richmond, above, the expense of providing ambulance service is an expense common to the whole county. Thus the citizens of the cities of Whitley County pay their proportionate part of that expense when they pay their county ad valorem taxes. We assume here that this ambulance service contract is to be funded from the county's ad valorem taxes.
CONCLUSIONS
(1) Where a county is funding its ambulance contract from the county's ad valorem taxes, it would have to include all of the county, including corporate areas within the county, as a service area, since the ambulance purpose is common to the entire county. The county would have the alternative of joining with its cities in an ambulance service contract, established on an equitable basis for corporate and non-corporate citizens. Joint action of the city and county would satisfy the doctrine of public purpose under § 171, Kentucky Constitution. City of Lexington v. Hager, Ky., 337 S.W.2d 27 (1960). In addition, the cities and county could establish ambulance service districts, pursuant to KRS Chapter 108, whereby the ambulance service would be funded out of the district tax, which district would be a taxing district, and which would not involve city or county taxation. See § 157, Kentucky Constitution. See also KRS 108.175 and 108.105.
(2) An ambulance service contract can be let under KRS 65.710, provided such franchise is let out under competitive bidding, pursuant to § 164, Kentucky Constitution. Such a franchise may be granted for up to twenty (20) years. If the subject contract was not let under competitive bidding, it would be void. Board of Education of Floyd County v. Hall, Ky., 353 S.W.2d 194 (1962) 194, 195.
(3) Where a county undertakes an ambulance contract, it should cover all county citizens who may, at any one time, be located anywhere within the county, including one of the cities within the county.
(4) While the courts recognize that both cities and counties may make provisions for ambulance service, a county has the primary duty to provide such service, where it decides to furnish such service, to citizens and taxpayers of the entire county, including cities in the county. This is subject to available revenue and budgeted funds within its taxing power. See City of Paducah v. McCracken County, 305 Ky. 539, 204 S.W.2d 942 (1947) 944. The cities also have a duty to provide ambulance service for city residents and taxpayers, once it decides to provide such service. See KRS 82.082. Thus there is nothing to prevent the city's supplementing in a practical sense funds expended for ambulance service by the county for service to city taxpayers. City of Paducah v. McCracken County, above. So in this whole delicate fabric of local government, and while pointing out that ambulance service is a common purpose to the county and involves a primary duty of the county, the county must observe its limited taxing power, and the cities must consider its role in the ambulance service field.
Where joint city-county programming or separate city and county programming cannot satisfy the taxpayers of the county, including those living in the cities, in terms of actual need and in terms of the need for constitutional uniformity, and where the cities and county cannot agree on the financial burden to be assumed by each government, we can only suggest that the cities and county study the option of creating separate ambulance tax districts, which special district taxes can fund such operations, free and clear of city and county taxation. It remains that the General Assembly has enacted no law that fixes clearly the proportionate responsibility of the city and county.