Could a Kentucky fiscal court create a sanitation district without taxing power?

Plain-English summary

In 1994, Kentucky's Attorney General said a fiscal court could not create a sanitation district under KRS Chapter 220 while withholding the district board's statutory authority to impose taxes. The opinion said the cabinet secretary may create a district under KRS 220.020, KRS 220.360 gave its board taxing authority, and KRS 220.035 did not give fiscal courts power to limit that authority.

The AG applied the rule that a county has only powers delegated by statute. It treated the legislature's specific list of fiscal court powers concerning sanitation districts as excluding an unlisted power to remove the board's tax authority.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Fiscal courts

The Bullitt County Attorney asked whether a fiscal court could create a sanitation district that lacked taxing power. The AG answered no. It said KRS 220.035 enumerated the fiscal court's district-related powers without including authority to restrict the district board's taxes.

Sanitation district boards

The opinion identified KRS 220.360 as giving a sanitation district's board of directors certain taxing authority. A fiscal court could not negate that express grant through its own district arrangements, according to the AG.

District creation

The AG said a KRS Chapter 220 sanitation district may be created by the secretary of the Natural Resources and Environmental Protection Cabinet acting as commissioner of sanitation districts under KRS 220.020. It separately noted that KRS 220.035 lists specific fiscal court powers concerning a sanitation district.

Common questions

Could the fiscal court remove the district board's taxing power?

The AG answered no. It found no such power in KRS 220.035 and pointed to the board's express authority under KRS 220.360.

Did the fiscal court itself create a sanitation district under this chapter?

The opinion said the state cabinet secretary, acting as commissioner, could create the district under KRS 220.020.

Why did the absence of an express county power matter?

The AG said counties exercised delegated powers and applied the statutory-construction rule that listing particular powers excludes an unlisted one.

Background and statutory framework

The AG read KRS 220.020, KRS 220.035, and KRS 220.360 together. It cited Bloemer v. Turner for the interpretive rule that enumeration of particular things excludes what is not mentioned. Because the fiscal court provision did not mention a power to limit taxation, the office concluded that the county could not take that power away from the district board.

Citations and references

• KRS 220.020: authority of the state official identified in the opinion to create a sanitation district.
• KRS 220.035: fiscal court powers concerning sanitation districts.
• KRS 220.360: district board taxing authority.
• Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387, 390 (1939): enumeration and exclusion principle.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-046.htm

Original opinion text

OAG 94-46

June 27, 1994

Hon. Walter A. Sholar

Bullitt County Attorney

P. O. Box 6539

Shepherdsville, Kentucky 40165

Re: Whether Fiscal Court May Establish Sanitation District Which Does Not Have Taxing Authority.

Dear Mr. Sholar:

By letter of May 25, 1994, you asked, in substance, whether the fiscal court may create a KRS 220 sanitation district that does not have taxing authority.

In our view the answer is no. Discussion follows.

A KRS chapter 220 "sanitation district" may be created by the secretary of the Natural Resources and Environmental Protection Cabinet acting as "commissioner of sanitation districts" in accordance with KRS 220.020.

KRS 220.360 invests the board of directors of a sanitation district with certain authority to impose taxes in connection with such a district.

KRS 220.035 enumerates certain specific powers a fiscal court may exercise in connection with a sanitation district. Those powers do not provide authority for a fiscal court to restrict the taxing authority invested in the board of directors of a sanitation district by KRS 220.360.

It is well recognized that a county (and of course, a fiscal court), as a subordinate unit of government, can do that which it is statutorily empowered to do, and cannot do that which it is not authorized to do. The legislature has expressly listed the authority of a fiscal court in connection with a sanitation district (KRS 220.035).

As was pointed out in Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387, 390 (1939):

Logic and experience developed the maxim expressio unius est exclusio alterius,-- 'The enumeration of particular things excludes the idea of something else not mentioned.' This is a primary rule of statutory construction. Hughes v. Wallace, Ky., 118 S.W. 324; 25 R.C.L. 982.

In keeping with such rule, we believe a fiscal court has no power to restrict the authority of a sanitation district board to impose taxes the board is expressly authorized to impose (KRS 220.360). As the powers of a fiscal court in connection with a sanitation district have been expressly listed in KRS 220.035, and as such powers do not include the power to restrict the taxing authority of a sanitation district board, a fiscal court, in our view, does not have such authority. Bloemer, above; KRS 220.035.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General