Request By:
Hon. Joe Meyer
Chairman, Subcommittee on Urban Affairs
Interim Joint Committee on Cities
Legislative Offices
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 12 in which you relate the following circumstances and question:
"The Subcommittee on Urban Affairs of the Interim Joint Committee on Cities of the Kentucky General Assembly, has been reviewing KRS 81.010, relating to the classification of cities, for possible amendment. The work of the subcommittee has revealed that the classification of cities based upon the requirements of § 156 of the Kentucky Constitution is an outdated approach when preparing municipal legislation. The Subcommittee on Urban Affairs would appreciate an opinion from your office regarding the constitutionality of the following proposal:
"Currently, KRS 81.010 sets forth city classifications which have been assigned by the General Assembly pursuant to the provisions of § 156 of the Constitution. § 156 charges the General Assembly, when changing city assignments to certain classifications, to use the last preceding federal census in the absence of other satisfactory information.
"The needs of urban and rural Kentuckians in the delivery of governmental goods and services vary widely. The subcommittee is looking into the possibility of statutorily creating a classification of cities based upon a definition of urbanized areas and rural areas and the counties within which they are located.
"The U.S. Census Bureau has developed a definition of an urbanized area which the subcommittee may employ in developing a new classification. The criteria used in determining the eligibility and definition of the 1980 urbanized areas has been attached for your information and review.
"Question: In light of the advanced technology and information available to states through the U.S. Bureau of the Census, would legislation prepared by the Subcommittee on Urban Affairs, pertaining to the organization and government of cities, be in violation of the provisions of the Kentucky Constitution, especially § 156, if the legislation were to statutorily establish a classification of cities based upon a definition of urbanized and rural areas and the counties within which they are located?"
Our response to your question would be in the affirmative. Section 156 of the Constitution relates in part as follows:
"The cities and towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. . . . To the first class shall belong cities with a population of one hundred thousand or more; to the second class, cities with a population of twenty thousand or more, and less than one hundred thousand; to the third class, cities with a population of eight thousand or more, and less than twenty thousand; to the fourth class, cities and towns with a population of three thousand or more, and less than eight thousand; to the fifth class, cities and towns with a population of one thousand or more, and less than three thousand; to the sixth class, towns with a population of less than one thousand. The General Assembly shall assign the cities and towns of the Commonwealth to the classes to which they respectively belong, and change assignments made as the population of said cities and towns may increase or decrease and in the absence of other satisfactory information as to their population, shall be governed by the last preceding Federal census in so doing;. . ."
Constitutional provisions are mandatory and never directory unless by express language or necessary implication a different intent is manifest. Arnett v. Sullivan, 279 Ky. 720, 132 S.W.2d 76 (1939). Gaines v. O'Connell, 305 Ky. 397, 204 S.W.2d 425 (1947). Thus, mandatory constitutional provisions cannot be dispensed with by the legislature either by express terms or by necessary implication. See Couch v. Commonwealth, 281 Ky. 543, 137 S.W.2d 781 (1940) and Commonwealth v. O'Harrah, Ky., 262 S.W.2d 285 (1954).
As pointed out in the case of Bd. of Ed. of Jeff. Co. v. Bd. of Ed. of Louisville, Ky., 472 S.W.2d 496 (1971), Section 156 of the Constitution permits classification of cities upon the basis of size alone for the purpose or organization or government in matters relating thereto. Next referring to the case of Town of London v. Brown, 183 Ky. 63, 208 S.W. 317 (1919) we quote the following excerpt:
"It is clear from the language of the section of the Constitution, supra, that to the legislative department of the state government must be left the exclusive right to classify the cities and towns thereof and to change the assignment of a city or town from one class to another. In considering the extent to which this power may be exercised by the legislature, Cooley, in his work on Constitutional Limitations (4th Ed.), 225, says: 'From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished, and in the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. . . .'"
You will note from the above quote that although the legislature has the exclusive right to classify cities and towns and change such classification, the power to do so must be kept within constitutional limits and must observe the constitutional conditions.
The court further declared in the case of Albershart v. Donaldson, 149 Ky. 510, 149 S.W. 873 (1912) that Section 156 of the Constitution requires the legislature to provide by general law how cities and towns may be organized and incorporated. However, it is not contemplated by the Constitution that the legislature should declare a certain territory, a city or town and then proceed to assign it to a certain class.
Of course the legislature can establish a new unit of government such as the urban county government by combining the powers of both city and county governments and they may also establish taxing districts recognized as a form of a municipal corporation. Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974).
Under the circumstances, we believe the provisions of Section 156 of the Constitution are mandatory and require that all cities created within the Commonwealth be classified in one of the six classes mentioned therein depending on the population attained by the city within the minimum and maximum population fixed therein for each class. Thus, any attempt by the legislature to add a classification of cities such as one comprising both urban and rural areas within certain minimum and maximum population densities not recognized in the Constitution would violate Section 156 of the Constitution and would in our opinion be invalid. It would appear that in order for the legislature to accomplish what is contemplated here, a constitutional amendment to Section 156 would be required.