Request By:
Trisha Zeller James, Esq.
Executive Assistant
Office of the County Judge/Executive
Jefferson County Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
In your letter of July 22, you, on behalf of Judge Ehrler, request our interpretation of the statutory requirements of KRS 65.182 with respect to the method of creating a library taxing district under KRS 173.450 to 173.650. Your questions are as follows:
"1. Must the signatures on a petition to create a taxing district be verified as to voter registration?
"2. If the verification process is undertaken, is the timetable for public hearings and decision set forth in KRS 65.182(3) and (5) in any way affected?
"3. Can a 'poll' or 'straw vote' be placed on the November ballot asking for voter opinion regarding the Fiscal Court's action on the proposed taxing district?
"4. Can the petitioners continue to collect signatures once the petition and supporting documentation have been submitted to the Fiscal Court?
"5. Can the tax rate requested in the petition be decreased after the petition is submitted to the Fiscal Court?"
Our response to your initial question would be in the affirmative. KRS 65.182 requires that the petition to establish a taxing district must be in the form prescribed in KRS 65.184 and signed by a number of registered voters equal to 25 percent of the average number of voters living in the proposed district and voting in the past four general elections. Although this statute does not detail any procedure for reviewing the petition to determine whether it complies with the statutory requirements, it seems obvious that this burden must fall on the fiscal court and its members with whom the petition is filed and who have the added responsibility of scheduling a hearing on the subject and approving or disapproving the formation of a district. Unless the signatures were verified as to voter registration, there would be no determination as to whether or not the petition is valid. Thus we believe the court should direct the county clerk to check the signatures on the petition against the registration books to determine whether or not they are duly registered and also whether the number of signatures meets the statutory percentage requirement.
In response to your second question, we believe the verification process must be accomplished within the time frame set out in KRS 65.182(3). Subsection 3 requires that a hearing be scheduled on the proposal no earlier than 30 days nor later than 90 days following the receipt of the petition, charter and plan of service. This would obviously mean the petition must be verified in time for the hearing to be scheduled pursuant to appropriate notice required under Chapter 424 KRS within the referred to time frame.
Our response to your third question would be in the negative. There are no present constitutional or statutory provisions under Kentucky law authorizing public questions generally to be placed on a ballot.
The law relating to the holding of elections or the placing of public questions to a vote of the people is clear in requiring specific authorization. Referring to McQuillin, Mun. Corps., Vol. 3, § 12.03, we quote the following general rule applicable to this subject:
"Where there is no statutory authority for the submission of a question to the voters, such a submission by a public authority clothed with power with respect to the question submitted constitutes an unauthorized redelegation of delegated power, and the decision of the voters is not controlling or binding. . . ."
Next referring to 26 Am. Jur., 2d, Elections, § 183, we find the following:
"There is no inherent right in the people, whether of the state or of some particular subdivision thereof, to hold an election for any purpose. Such action may be taken only by virtue of some constitutional or statutory enactment which expressly or by direct implication authorizes the particular election. The rule is firmly established that an election held without authority of law is void, even though it is fairly and honestly conducted."
Again in 29 CJS, Elections, § 66, you will note the following:
"In all popular forms of government the power of a majority to bind the minority by a popular vote depends on the fact that the elections are held by virtue of some legal authority. There is no inherent right or power in the people to hold an election, and the system of elections in this country is not of common-law origin, since it was unknown to the common law.
"The right or power to hold an election must be based on authority conferred by law, and an election held without affirmative constitutional or statutory authority, or contrary to a material provision of the law is universally recognized as being a nullity, even though it is fairly and honestly conducted. . . ."
In Kimbley v. City of Owensboro, 176 Ky. 532, 195 S.W. 1087 (1917), the court declared that ". . . the general rule is that elections cannot be held without affirmative constitutional or statutory authority. " See also Goodloe v. Baesler, Ky., 539 S.W.2d 298 (1976).
Thus any attempt to place the library taxing district formation question on the ballot would not only be unauthorized and therefore not binding, but would also constitute an unauthorized expenditure of county funds in our opinion. Even the use of public funds to obtain a straw vote by means other than a referendum would appear to be legally questionable.
Our response to your fourth question would be in the negative. The terms of the statute relating to the filing of the petition which contains no deadline for filing, clearly implies that once filed and subject to review and verification it cannot be amended thereafter so as to add additional signatures. As pointed out in the case of Hall v. Reid, Ky., 305 S.W.2d 923 (1957), the qualifications of the petitioners are to be judged as of the day the petition is filed. True, KRS 65.184(2) provides that each signature shall be dated as of the date of its execution and the last signature no later than 180 days from the first signature. However, this time frame for collecting signatures is intended, we believe, to refer to the amount of time available prior to the final act of filing the petition with fiscal court. Also, to hold otherwise could obviously create problems involving the time frame in which a hearing must be scheduled by the fiscal court following the filing of the petition.
Our response to your fifth question would also be in the negative as we find no authority to alter the tax rate designated in the petition after it has been filed. KRS 65.185 detailing the petition form requires the exact tax amount to be inserted in the petition. KRS 65.182 simply declares that following the hearing the fiscal court shall either approve or disapprove the formation of the district to provide the services described in the plan and exercise the powers granted by the statutes applicable to the taxing district being formed. Of course the tax rate can, following the establishment of the library district, be increased or decreased within the maximum of 20 on each $100 of the assessed valuation of all property within the district pursuant to KRS 173.610(1) or (3).