Request By:
Mr. Lester M. Thompson
Secretary
Finance and Administration Cabinet
Frankfort, Kentucky
Opinion
Opinion By: David L. Armstrong, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
KRS 189A.010(1), enacted in the 1984 Session, contains the explicit prohibition against a person's operating a motor vehicle in Kentucky while under the influence of alcohol or any other substance which may impair one's driving ability. Other subsections of that statute relate to penalties for violation of the statute.
KRS 189A.050, created also by Senate Bill 20 in the 1984 Session, provides for the payment, by the person convicted of violating KRS 189A.010, of a service fee of one hundred and fifty dollars ($150), which shall be in addition to all other penalties authorized by law. The service fees are to be used to fund enforcement of S.B. 20 and for the support of jails, recordkeeping, and treatment and education programs authorized by the Act. KRS 189A.050(3).
You say that the Transportation Cabinet and Administrative Office of the Courts each have a responsibility for the implementation of portions of the act, as well as state and local law enforcement officers. Your problem is that the statute does not address the question of how the service fee will be divided for enforcement and other purposes mentioned in KRS 189A.050.
A central question raised is whether KRS 189A.050(3) constitutes an appropriation of the service fee. You say that you find nothing in the 1984 Executive or Judicial Budgets which purports to appropriate the service fee. And if KRS 189A.050(3) is so construed as an appropriation of the fee, you ask whether the Executive Department may provide for allocation of the fee among the agencies responsible for administration of the programs established by law according to their responsibilities.
As you point out, § 230 of the Kentucky Constitution prohibits the payment of any money out of the state treasury except in pursuance of appropriations made by law.
We pointed out in OAG 84-184 that a budget bill is necessary in order to draw money from the state treasury. Ross v. Gross, 300 Ky. 337, 188 S.W.2d 475 (1945); and KRS 41.110. In Ross v. Gross the court wrote that the purpose of § 230 of the Constitution and KRS 41.110 was to prevent the expenditure of the state's money without the consent of the legislature. In Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812 (1939) 814, the court held that a statute directing the state auditor to issue a warrant for certain services of county sheriffs and the "Treasurer to pay it out of the General Fund" is an appropriation within the meaning of the Constitution. (Emphasis added). If KRS 189A.050(3) (stating that service fee is to be used to fund enforcement of the act, etc.) were to be construed as an appropriation under § 230, Constitution, it would fall flat on its face as a violation of § 51, Constitution, since the legislation would be both an appropriation and an act relating to crimes and punishments. Under that construction, KRS 189A.050(3) would be in violation of § 51, since it would involve two subjects.
Senate Bill 20 contains this title: "An Act relating to crimes and punishments." The title must adequately describe the subject dealt with in the Act. Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942) 411. In that case, in measuring the legislation against § 51, Constitution, the court observed that the legislation related exclusively to appropriation of money. Thus it passed muster under § 51.
CONCLUSIONS
(1) It is our opinion that the service fee, described in KRS 189A.050(1) and (3), is constitutional, since it in no way violates § 51 of the Kentucky Constitution. The bill has only one subject, "An Act relating to crimes and punishments." The service fee is not an appropriation, as envisioned in § 230 of the Kentucky Constitution and KRS 41.110. There is no intent expressed in KRS 189A.050 that such fees are to go into the state treasury prior to disbursement. In Shannon v. Dean, above, the statute specifically directed the treasurer to pay certain sums out of the state treasury for a designated purpose. Thus the court held the statute to constitute an appropriation. As a side issue, not pertinent here, the § 51 (Ky. Const.) issue was not raised in that suit. Further, we are not aware of any constitutional requirement that all state moneys must go into the state treasury prior to disbursement. KRS 41.070(1) provides in part that "Unless otherwise expressly provided by law, no receipts from any source of state money or money for which the state is responsible shall be held, used or deposited in any personal or special bank account, temporarily or otherwise, by any agent or employee of any budget unit, to meet expenditures or for any other purpose." That indicates a legislative policy for generally requiring state money to be placed in the state treasury system prior to disbursement. See OAG 83-241, published, Banks-Baldwin, holding that state bond proceeds and project revenues must be deposited in the state treasury system. There no statute was found providing for a departure from the uniform policy. However, it is our view that KRS 189A.050(3), by its literal terms, suggests that deposits of those fees by the court clerks in the treasury system was not intended. In fact, the statute merely provides that "The service fee shall be utilized to fund enforcement of this Act and for the support of jails, recordkeeping, and treatment and education programs authorized by this Act." The legislature could have easily used explicit language making a deposit into the treasury system a sine qua non. It did not. Thus we conclude that the court clerks are authorized to deposit such service fees in special or non-treasury bank accounts, subject to withdrawal or disbursement policies established by the regulatory action, on a coordinated basis, of the Finance and Transportation Cabinets and the Administrative Office of the Courts, as will be described in conclusion No. (2) herein. Note that under this construction, the purpose of § 230 and KRS 41.110 is in reality being met, since the legislature specifically created this service fee for designated public purposes. Thus state money will be spent with the state's consent.
(2) Considering that the Finance and Transportation Cabinets and the Administrative Office of the Courts, as well as state and local law enforcement officers, may have some entitlement to share in the distribution of the service fee, it is our opinion that the actual scheme of allocating and distributing such fees deposited in a special bank account may be equitably and functionally determined through the coordinated regulatory action of the Finance and Transportation Cabinets and the Administrative Office of the Courts. See KRS 13.080(1) and 13.082. Such regulations properly adopted and filed have the full effect of law. Kentucky Ass'n of Chiropractors v. Jefferson County Medical Soc'y, Ky., 549 S.W.2d 817 (1977). Those administrative bodies should carefully note the categories of use of the fee suggested in KRS 189A.050(3). In structuring an equitable, but workable scheme of distribution, they should also be guided by what is deemed to be reasonably necessary to carry out the purposes of the Act. We believe that the categories of use of the service fee are sufficiently descriptive of legislative intent, such that no question of unconstitutional delegation of legislative power exists in connection with the administrative determination of allocation of such fees. See Hopkins v. Ford, Ky., 534 S.W.2d 792 (1976). You have expressed concern, in the administrative allocation of the fees for funding purposes, about your authority to classify certain costs, which are reasonably calculated to arise in the enforcement of the Act, along with other categories of cost enumerated in KRS 189A.050(3), as being necessary governmental expenses. Here again, the administrative units must arrive at a scheme of distribution which is equitable, is consonant with the responsibility of enforcement of the administrative units, and is carefully considered to be reasonably necessary to carry out the legislative programs referred to in KRS 189A.050(3). If you reasonably meet those guidelines, the technical question of necessary governmental expenses will be practicably adhered to. See, as to general budget and financial administration, KRS 45.142, 45.251, 45.301, and 45.305. Also see, as to budget practice, KRS 48.165 and 48.800, as amended in 1984. It is anticipated that you will require, for such non-treasury handling of such fees, the usual strict accounting practice.