Request By:
Hon. C. Michael Weldon
Burnam and Thompson, P.S.C.
Attorneys at Law
P.O. Box 726
Geri Lane
Richmond, Kentucky 40475
Opinion
Opinion By: David L. Armstrong, Attorney General; Robert V. Bullock, Assistant Attorney General
This is in response to your letter in which you ask our opinion on two related matters. These matters will be taken in the order in which asked:
1. "Does the 1982 amendment to KRS 330.040(2) effectively limit the exception contained therein to 'individuals', and deny said exception to 'associations, partnerships, and corporations,' and 'the officers, directors and employees of a corporation?'"
KRS 330.040(2) is an exception to KRS 330.030 which requires a license to act as an auctioneer and states such exemption applies to:
"Sales at auction of any real or personal property conducted exclusively by an individual who personally owns such real or personal property and who did not acquire such real or personal property for resale. This subsection is applicable only to individuals. It does not apply to any other 'person' as defined in KRS 330.020(5), nor does it apply to any officer, director or employee thereof." (Emphasis added).
A reading of the statute makes it clear that KRS 330.040(2) effectively limits the exception contained therein to "individuals", and denies the exception to "associations, partnerships, and corporations" as well as "the officers, directors and employees of a corporation".
2. "If so, does the distinction in said amendment between 'individuals' and other 'persons', as defined in KRS 330.020(5), constitute 'special legislation', prohibited by Section 59 of the Constitution of the Commonwealth of Kentucky?"
Section 59 of the Kentucky Constitution states in part:
"The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes namely:
(29) In all other cases where a general law can be made applicable, no special law shall be enacted."
Section 59 of the Kentucky Constitution does not forbid a reasonable and proper classification of the objects of legislation, and an act making a classification will only be avoided where the classification is manifestly arbitrary. Such classification will not be disturbed by the Court unless so manifestly unfounded, arbitrary or unjust as to impose a burden upon, or exclude, one or more of a class, without a reasonable basis in fact.
Allison v. Borders, 299 Ky. 806, 187 S.W.2d 728 (1945). The question then becomes whether the classification made by the statute has a reasonable and rational basis in light of the purpose and objective of the statute.
Commonwealth v. Beasy, Ky., 386 S.W.2d 444 (1965).
While a good argument can be made that prohibiting corporations and their officers from acting as auctioneers without a license is improper, it would seem that an even better argument can be made that corporations, associations, and partnerships are different from "individuals" in repossession matters. A corporation or a partnership is only considered a "person" as a result of legislative fiat (see KRS 446.010(26)). Such designation of a corporation as a person is applicable unless the statute requires otherwise. The auctioneer's statute (KRS 330.040) is a statute that requires otherwise.
Courts, in deference to legislative bodies, will not strike down a statute unless its violation of the Constitution is clear, complete and unequivocal. It is an axiom of the judiciary that there exists a presumption in favor of the constitutionality of a duly enacted statute.
Sasaki v. Commonwealth, Ky., 485 S.W.2d 897, 904 (1972) - vacated on the issue of abortion;
Roe v. Wade, 410 U.S. 113;
Conrad v. Lexington-Fayette Urban County Government, Ky., 659 S.W.2d 190, 194 (1983).
The prohibition of anyone other than an "individual" from acting as an auctioneer would appear to be a proper legislative classification in light of the presumption of the statute's constitutionality. Accordingly, it is the opinion of this office that KRS 330.040(2) is constitutional and does not violate Section 59 of the Kentucky Constitution. Since the statute in question has been amended subsequent to 1979, OAG 79-362 is no longer applicable.