Request By:
Mr. Tom Hart
Charter Commission for Urban County Government
P. O. Box 2120
Bowling Green, KY 42102-2120
Opinion
Opinion By: Frederic J. Cowan, Attorney General; By: E. Douglas Richards, Assistant Attorney General
Re: Voting Units for Local Option Elections
This office has received your letter of May 23, 1988 in which you pose the following question:
Does an urban-county government have the right to provide in its Charter that the original city and county boundaries will remain in effect with regard to local option elections or will the urban-county form of government necessitate that the entire area become one voting unit for local option purposes?
The Charter Commission has been advised that if the voters adopt an urban-county form of government, all of Warren County (including Bowling Green) would become one voting unit for purposes of local option elections. This office disagrees with that conclusion and believes instead that both Bowling Green and surrounding Warren County could retain their present identities for purposes of local option elections. However, the issue is not clear and could be litigated in the absence of clarifying action by the General Assembly.
The "county unit" rule evolved following the adoption of the Kentucky Constitution in 1891. Section 61 of the Kentucky Constitution requires the General Assembly to provide by general law a means of holding local option elections in "any county, city, town, district or precinct. " Section 61, however, specifically did not alter existing "special" laws of the legislature which imposed prohibition in a number of counties and towns. The courts quickly construed Section 61 to create a presumption in favor of prohibition:
Our construction is, in view of these conditions and the language used, that the Constitution meant that the local units named should control within their own territory should control within their own territory the question of prohibition; that each should have the privilege of saying conclusively that prohibition should prevail, but not conclusively that it should not. This construction harmonizes the section so as to allow all of it to stand, and to give equal force and power to each unit named.
Board of Trustees of Town of New Castle v. Scott, 125 Ky. 545, 101 S.W. 944, 950 (1907). The Scott case interpreted the Commack County Unit Act, which had become law in 1906; the Commack Act provided that entire counties could vote to overrule a "wet" vote in a smaller unit within the county:
Under the statute that was repealed by this [the Commack] act, a vote against prohibition was given the same effect as a vote in favor of it; but the present act intended to give a different effect, by allowing each unit a chance - without regard to any previous vote taken in any other unit - to adopt prohibition.
Id. Thus, a county-wide vote could impose or maintain prohibition on an entire county, but a county-wide vote against prohibition would not make any smaller unit "wet" which had previously voted "dry. " (The Commack Act did exempt cities of the first four classes, as does the present KRS 242.125).
The court in
May v. Ferguson, 135 Ky. 411, 122 S.W. 208, 209 (1909) fully set forth the county unit rule:
. . . Where no prohibitory laws are in force in the county, any magisterial district, voting precinct, or town of any class may vote to establish prohibition within the limits of such magisterial district, voting precinct, or town; but, where prohibition has been established in the entire county, a different rule obtains. A unit has been established, and the vote can never again be taken in any subdivision of that county other than in some one of the cities belonging to the excepted class, unless it is taken in the entire county. So that, where a precinct or magisterial district has once been made dry by a vote of the county, it must forever remain dry, unless the bond is lifted by the people of the entire county.
As applied to cities, the county unit rule has a confused history. The original Commack Act exempted cities of the first four classes from the county unit rule. In 1912, the legislature brought these cities within the rule, and the Court of Appeals upheld the 1912 amendment in
Young v. Trimble, 164 Ky. 177, 175 S.W. 366 (1915). After the hiatus of national prohibition, the legislature in 1936 reenacted the Commack Act, without exempting any cities from its effect; the Commack Act became KRS 242.210 in 1942, when Kentucky revised its statutory classification.
In 1948, the General Assembly replaced the Commack Act (KRS 242.210) with KRS 242.125, which attempts to explain the effect of various local option elections. Although the statute is admittedly confusing, it does establish that cities, including Bowling Green, are independent from counties for purposes of local option elections. Under its present form of government, the "county unit" rule does not affect the local option status of Bowling Green.
The issue, of course, is whether the county unit rule would include Bowling Green if Bowling Green and Warren County adopted an urban-county form of government. Our opinion is that it would not. Under KRS 67A.050, an urban-county government may in its comprehensive merger plan provide for the dissolution of incorporated municipalities, with the provision that:
(1) For purposes of all state and federal licensing and regulatory laws, statutory entitlement, gifts, grants-in-aid, governmental loan, or other governmental assistance under state or federal laws, rules or regulations;
(a) The urban-county shall be deemed a county and shall also be deemed to contain incorporated municipalities of the number and classes which existed in the county on the day prior to the date the urban-county government became effective; and the entire geographic area and population of the urban-county shall be considered in calculating and determining the distribution basis for state or federal statutory entitlements, gifts, grants-in-aid, loans, or other forms of governmental assistance; (Emphasis added).
Our opinion is that local option elections are within state "licensing and regulatory laws" for which the present City of Bowling Green should be deemed to exist even after the adoption of an urban-county form of government. Therefore, the county unit rule would still apply to all of Warren County outside of Bowling Green, which would remain an independent unit for purposes of local option elections. This position is consistent with (1) the public policy implicit in KRS 242.125 that urban areas be given autonomy in local option elections, and (2) the primacy of the county unit over the local option status of rural areas. See
Howard v. Salyer, Ky., 695 S.W.2d 420 (1985). Moreover, legislation over the past decade has stood on its head the 1909 observation in
May v. Ferguson, supra, 122 S.W. at 209, that the object of the legislature "has been to bring about prohibition and create dry territory"; the legislature, for example, enacted KRS 242.1292 et seq. in 1980 to allow Ashland to have limited "wet" precincts despite previously unsuccessful city-wide elections. See
United Dry Forces v. Lewis, Ky., 619 S.W.2d 489 (1981).
Therefore, reading KRS 67A.050 and 242.125 together, it is our opinion that the urban-county government charter may provide that future local option elections will not be bound by the "county unit" rule. I repeat that the issue may be subject to litigation in which the ultimate judicial interpretation is contrary to this opinion; legislative action remains the best solution to this statutory ambiguity.